/8C? (SorttfU Slam i>rlynnl ICtbrary Cornell University Library KF 9S7.B99 1867 A treatise of the law of bills of exchan 3 1924 018 852 115 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018852115 A TREATISE BILLS OF EXCHANGE PROMISSORY NOTES. A TREATISE OF THE LAW OP BILLS OF EXCHANGE, PROMISSORY NOTES, BANK-NOTES AND GHECKS. BY SIR JOHN BARNARD BJLES; queen's SERJEANT, NOW ONE OF THE JUDGES OF HER MAJESTY'S OOUET Or;^^MON PLEAS. gxitk ^msvitm, (with NOTES FB05I THE FOURTH AMERICAN EDITION,) WITH ADDITIONAL NOTES, ILLUSTRATING THE LAW AND PRACTICE IN THE UNITED STATES, BY GEORGE SHARSWOOD. TIGILANTIDUS NON DORMIENTIBUS JDRA SUBTENIUNT. PHILADELPHIA: T. & J. W. JOHNSON & CO. LAW BOOKSELLERS AND PUBLISHERS, NO. 536 CHESTNUT STREET. 1867. ^^2 5-^:? Entered, according to the Act of CongresE, in the year 1867, BY T. 4 J. W, JOHNSON & CO., In the Office of the Clerk of the District Court for the Eastern District of Pennsylvania. HENRY B. ASHMEAD, PRINTER. Nos. 1102 and 1101 Sanaom Street. TO THE EIGHT HONORABLE JAMES LORD WENSLEYDALE, LATE ONE OF THE BARONS OF HER MAJESTY'S COURT OF EXCHEQUER, TO WHOM THE LAW AND ITS PROFESSORS ARE UNDER OBLIOATIONS AS GREAT AS TO ANY JUDGE WITHIN LEGAL MEMORY, i^ mn% IS, WITH HIS PERMISSION, AFFECTIONATELY INSCRIBED THE AUTHOK. NOTE TO THE FOURTH AMERICAN EDITION. This Treatise is now presented to the American Profession, in a separate, and it is hoped, much improved form. Much care has been bestowed upon the Editorial Department. The cases on the subject are so numerous in the American Courts, that the diflSculty has been to avoid encumbering the work with crowded references. The Editor's effort has been to select and arrange the more impor- tant decisions, illustrative of the principles of the text, avoiding, — except in a few instances, in which it seemed important, for the sake of the Student, — any discussion of the grounds of the cases. In this respect, the character of the notes has been made, as far as the ability of the Editor permitted, to conform to that of the text, which is remarkable for its succinctness and for its judicious selec- tion of leading points and cases. It is evident that an attempt to do more — to make a library of the book — would have destroyed its symmetry and usefulness. Byles on Bills has now established its reputation as a standard work, and it may safely be commended, as well for its accuracy as its compendiousness, to the American Student and Practitioner. G. S. Apkil, 1856. NOTE TO THE FIFTH AMERICAN EDITION. Since the Fourth American Edition, this work has run through three English editions. These have all incorporated the principal American notes ; and the Seventh published at large the pre- fatory note to the Third American. The additional notes have been carefully revised, and the eases brought up to the present time. It is unnecessary to remark anything further on the cha- racter of the book, as the facts sufficiently evince the estimation in which it is held by the profession both in England and in this country. G. S. July, 1867. PREFACE TO THE SEVENTH EDITION. Since the publication of the Sixth English Edition, many important questions have been settled by judicial decision, several statutes bearing more or less- directly on the subject have been passed, the pleadings in all actions have been simplified and brought (though with some drawbacks) nearer to a rational system of allegation, the law of evidence has been materially changed, and the steps of procedure expedited. The law of Bills of Exchange has still farther developed itself in the United States, where this treatise has been three times re- published without any change in the text. The points of diverg- ence between the English and American law, are shown in the annotations of the Hon. Geoesb Sharswood, appended to the Third American Edition of the Sixth English Edition. The most important of these notes are briefly referred to in the present Edition. John Barnard Byles. 6 Kino's Bench, Walkee Temple, 2Sth January, 1857. PREFACE TO THE EIGHTH EDITION. In preparing for the press the Eighth Edition, the Author has to acknowledge his obligation to two gentlemen. He is indebted to ^ the Honorable George Sharswood, of Pennsylvania, for valuable information derived from the Fourth American Edition of this work, edited by that eminent Judge, and enriched with notes from his own pen. To the learning and accuracy of his friend Richard Couch, Esq., formerly of the Norfolk Circuit, and now one of the Judges of Her Majesty's High Court of Judicature at Bombay, he is also indebted for assistance in collecting the recent English authorities. London, 1st July, 1862. PREFACE TO THE NINTH EDITION. In preparing for the press the Ninth Edition, by collecting the recent English authorities and revising the Index, the Author has to acknowledge his obligation to two gentlemen of the Bar, Wil- liam Markby, Esq., recently of the Norfolk Circuit, and now one of the Judges of Her Majesty's High Court of Judicature at Calcutta, and Maurice Barnard Bylbs, Esq. London, 1st November, 1866. PREFACE TO THE FIRST EDITION. There is no vestige of the existence of bills of exchange*' among the ancients, and the precise period of their introduction is somewhat controverted. It is, however, certain that they were in use in the fourteenth century. Indeed, they are mentioned as "letteres d'eschange" in the English Statute Book (3 Ric. 2, c. 3), * II n'y a aucum vestige de notre contrat de change, ni des letires de change, dans le droit Remain. Ce n'est qu'il n'arriv4t quelquefois chez les Romains, que Ton comptat pour quelqu'un une Bomme d'argent dans un lieu k une psrsonne, qui se chargeoit de lui en faire compter antant dans un autre lieu. Ainsi nous voyous, dans les letttes de Cic6ron k Atticua, que Ciceroa voulant envoyer son fils faire ses fetudps k Athenes, a'informe si pour Spargner k son fils de porter lui-mgme k Ath^nes I'argent dont 11 y auroit besoln, on ne trouveroit pas quelque occasion de le compter, k Rome, k quelqu'un qui se chargeroit de le lui faire compter k Athfenes. — Epist. ad Att. xii. 24 ; xv. 25. Mais cela n'fetoit pas la negociation de lettres de change telle qu'elle a lieu parmi nous ; cela se faisoit par de simples mandats. Cic6ron chargeoit quelqu'un de ses amis de Rome qui aToit de i'argent k receToir k Athenes, de faire tenir de I'argent k son fils k Athfenes ; et cet ami, pour exeouter le mandat de Ci- c6ron, 6crivoit k quelqu'un des d^biteurs qu'il avoit k Athenes, et le chargeoit de compter une somme d'argent au fils de Cic6ron. An reste, on ne voit point qu'il se pratiqudt chez les Romains, comme parmi nous, un commerce de lettres de change : et nous trouTons au contraire, en la loi 4, § 1, if. de naut. Poen., qui est de Papi- nien, que ceux qui prgtoient de I'argent k la grosse aventure aux marchands qui trafiquoient sur mer, envoyoient un de leurs esclaves pour recevoir de lear dSbiteur la somme pretee lorsqu'il seroit arrive au port oil 11 devoit vendre ses marchaa- dises ; ce qui certainement n'auroit,pas et6 n^cessaire, si le commerce des lettres de change eiit 6te en usage chez les Romains. tQuelques auteurs out pr^tendu que I'usage du contrat.de change et des lettres de change est venu de la Lombardie, et que les Juifs, qui y 6toient 6tablis, en ont &t& les inventeurs : d'autres en attiibuent I'invention aux Florentins, lorsqu'ayant ^te cbasses de leur pays par la faction de Gibelins, ils s'6tablirent k Lyon et en d'autres villes. II riy a rim, sur cela de certain, si ce n'est que les lettres de change Sloimt en usage dis le quatorziime sibcle. C'est ce qui parott par une loi de Venise de ce temps sur cette matifere, rapportee par Nicholas de Passeribus, en son livre, De Script. Priyat. lib. 3. — Pothier, Traite du Oontrat de Change, Parti Prem. ; Chap. 1, s. 1. xii PREFACE TO THE FIRST EDITION. as early as the year 1379. Though we find in our English reports no decision relating to them earlier than the reign of James the First.* It is probable that a bill of exchange was, in its original, nothing more than a letter of credit from a merchant in one country, to his debtor, a merchant, in another, requesting him to pay the debt to a third person, who carried the letter, and happening to be traveling to the place where the debtor resided. It was dis- . covered by experience, that this mode of making payments was extremely convenient to all parties : — to the creditor, for he could thus receive his debt without trouble, risk or . expense — to the debtor, for the facility of payment was an equal accommodation to him, and perhaps drew, after it facility of credit — to the bearer of the letter, who found himself in funds in a foreign country, without the danger and incumbrance of carrying specie. At first, perhaps, the letter contained many other things besides the tfrder to give credit. But it was found that the original bearer might often, with advantage, transfer it to another. The letter was then dis- incumbered of all other matter ; it was open and not sealed, and the paper on which it was written gradually shrank to the slip now in use. t'he assignee was, perhaps, desirous to know beforehand, whether the party, to whom it was addressed, would pay it, and sometimes showed it to him for that purpose; his promise to pay was the origin of acceptances. These letters or bills, the repre- sentatives of debts due in a foreign country, were sometimes more, sometimes less, in demand ; they became, by degrees, articles of traffic ; and the present complicated and abstruse practice and theory of exchange was gradually formed. Upon their introduction into our own country, other conve- niences, as great as in international transactions, were found to attend them. They offered an easy and most effectual expedient for eluding the stubborn rule of the common law, that a debt is ncA assignable ; furnishing the assignee with an assignment binding on the original creditor, capable of being ratified by the debtor, per- haps guaranteed by a series of responsible sureties, and assignable still further, ad infinitum. Not only did these simple instruments transfer value from place to place, at home or abroad, and balance * Martin T. Bonre, Cro. Jac. 6. PREFACE TO THE FIRST EDITION. XIII the accounts of distant cities without the transmission of money ; not only did they assign debts in the most convenient, extensive and effectual manner ; but the value 6f a debt was improved by being authenticated in a bill of exchange, for it was thus reduced to a certain amount, which the debtor, having accepted, could not afterwards unsettle ; evidence of the original demand was rendered unnecessary, and the bill afforded a plainer and more indisputable title to the whole debt. A creditor, too, by assigning to a man of property a bill at a long date, given him by his debtor, could , obtain, for a trifling discount, his money in advance. Credit to the buyer was thus rendered consistent with ready money to the seller, and the reconciliation of the apparient inconsistency was brought about by a further benefit to a third person, for it was effected by advantageously employing the surplus and idle funds of the capitalist. At the first introduction of bills of exchange, however, the English Courts of Law regarded them with a jealous and evil eye, allowing them only between merchants ; but their obvious advantages soon compelled the Judges to sanction their use by all persons ; and of late years the policy of the Bench has been industriously to remove every impediment, and add all possible facilities to these wheels of the vast commercial system. The advantages of a bill of exchange in reducing a debt to a certainty, curtailing the evidence necessary to enforce payment, and affording the means of procuring ready money by discount, often induced creditors to draw a bill for the sake of acceptance; though there might be no intention of transferring the debt. Such a. transaction pointed out the way to a shorter mode of effect- ing the same purpose by means of a promissory note. Promissory notes soon circulated like bills of exchange, and became as common as bills themselves. Notes for small sums, payable to bearer on demand, were found to answer most purposes of the ordifiary cir- culating medium, and have at length, in all civilized countries, supplanted a great portion of the gold and silver previously in circulation. Great, however, as was the saving, and numerous the advantages arising from the substitution, it was discovered by experience that the dangers and inconveniences of an unlimited issue of paper money were at least as great. The Legislature have, therefore, found it necessary to place the issue of negotiable notes for small sums under the restrietions which will be pointed xiv PKEFACB TO THE FIRST EDITION. out in this work ; and experience has proved that the only mode of preserving paper money on a level with gold, is to compel the utterers to exchange it for gold, at the option of the holder. And peradventure even then, unless the State control the issue of paper, on principles controverted and imperfectly understood at present, the value of the whole circulating medium may decline together, as compared with other commodities or the currency of foreign countries, and the consequent tendency of the precious metals to leave the kingdom may, by narrowing the basis of the currency, endanger the whole superstructure. During the suspension of cash payments and the circulation of one pound notes, nearly every payment in this country was made in paper. And some idea may be formed of the immense amount of property now afloat in bills and notes, when it is considered that all payments for our immense exports and imports, almost every remittance to and from every quarter of the world, nearly every payment of large amount between distant places in the kingdom, and a large proportion of payments in the same place, are made through the intervention of bills ; not to mention the amount of common promissory notes,' at long and short dates, the notes of the Bank of England and country banks, and the universal and daily increasing use of checks. It will not, perhaps, be an unreasonable inference that the bills and notes of all kinds, issued and circulated in the United Kingdom in the space of a single year, amount to many hundred millions. Simple as the form of a bill or note may appear, the rights and liabilities of the diiFerent parties to those instruments have given rise to an infinity of legal questions, and multitudes of decisions—- a striking proof of what the experience of all ages had already made abundantly manifest^ — that law is, in its own nature, neces- sarily voluminous ; that its complexity and bulk constitute . the price that must be paid for the reign of certainty, order, and uniformity ; and that any attempt to fegulate multiform combina- tions of circumstances, by a few general rules, however skilfully constructed, must be abortive. In France this subject has been briefly but luminously treated, first by Dupuy de la Serra, in a little book entitled " L' Art des PREFACE TO THE FIRST EDITION. XV Lettres de Change," and afterwards by Pothier, whose work, as well as his other performances, and in particular the Traiti des Obligations, evinces a profound acquaintance with the principles of jurisprudence, and extraordinary acumen and sagacity in their application ; the result of the laborious exercise of his talents on the Roman law. There cannot be a greater proof of the surpassing merit of his works, than that, after the lapse of more than half a century, and a stupendous revolution in all the institutions of his "country, many parts of his writings have been incorporated, word for word, in the new Code of France. The TraitS du Qontrat de Change is often cited in the English Courts of Law. "The authority of Pothier," says the present learned Chief Justice* of the Common Pleas, " is as high as can be had, next to the decision of a Court of Justice in this country ; his writings are considered by Sir "William Jones as equal, in point of luminous method, appo- site examples, and a clear manly style, to the works of Littleton on the Laws of England, "f In this country, the growth of the law on bills and notes has been almost proportionate to the increase of those instruments ; insomuch that within the last sixty years the reported decisions upon them, in law, equity and bankruptcy, would fill many vol- umes. Numerous have been the attempts to reduce the mass of authorities to the shape of a regular treatise; but amongst all these, two only are now in common use in the Profession, the trea- tise of Mr. Chitty, and tbfe summary of Mr. Justice Bayley.J The work of the learned Judge is written with the greatest cir- cumspection ; but it is now out of print, and the latest edition some years old.§ Mr. Chitty's treatise is a laborious and full collection of almost all the cases, by an eminent counsel, the extent of whose legal * Lord Chief Justice Best. f Cox V. Troy, 5 B. & A. 481. There is now also an able modern French work on the same subject by M. Noguier. In America have recently appeared the Commen- taries of Mr. Justice Story, on the Law of Bills of Exchange, and his Commentaries on the Law of Promissory Notes. / X Mr. Boscoe's Digest and Mr. Johnson's book, had not appeared when these observations were written. § A new edition has since been published. XYl PREFACE TO THE FIRST EJ)ITION. acquirements, and the readiness of their application, can only be appreciated by those who have been in the habit of personal inter- course with him. But the size of the book is an objection with many, and a cloud of authorities will sometimes obscure the most luminous arrangement. This little work does not aspire to compete with either of the above learned performances, but merely to supply a want, felt by many, of a plain and brief summary of the principal practical points relating to bills and notes, supported by a reference to the leading or latest authorities. In many cases the reader will, how- ever, find the law laid down in the very words of the judgment, a plan which the Author has been induced to adopt, partly that those who may not have ready access to the authorities may be satisfied that the law is correctly stated ; and partly because he distrusted his own ability to enunciate, on so complicated a sub- ject, a general rule, neither too narrow nor too wide, beset, as almost all such general rules now are, with numerous qualifications and exceptions. No pains have been spared to render the subject intelligible. How far the book is likely to be useful in practice, it is for others to determine. John Barnard Btlbs. Inner Temple, ISih April, 1829. ^' CONTENTS. THE PAGES BEFEBBED TO ABE THOSE BETWEEN [ J. CHAPTER I. GENERAL OBSERVATIONS ON A BILL OP EXCHANGE. Explanation of Terms Peculiar Qaalities of Contracts on Bills or Notes .... Effect of Drawing or Indorsing a Bill How far Bills and Notes are considered as Chattels 3 May be taken in execution Where a Bill or Note may operate as a Will or Testamentary Instru- ment ...... As a Declaration of Trust CHAPTER II. OF A PROMISSORY NOTE. What it is 5 How considered at Common Law, and what by Statute . , ' . 5 Promissory Notes made out of Eag- land . ■ 6 Form of a Note . ... 6 Note by a man to himself . . .6 Note by a man to himself and another, 7 Notes payable by instalments . . 7 Joint and several Notes . . .7 Where there is principal and surety - 8 Contribution between joint makers . 8 Bank Notes Bank of England Notes . . When Bank of England Notes are a legal tender Country Bank Notes .... When Country Bank Notes are a legal tender When Money had and received will lie for them Of the contracting words in a Promis- sory Note Other matters contained in a Note . 10 10 CHAPTER III. OP A CHECK ON A BANKER. What instruments are Checks . . 13 Requisites to bring Checks within the exemption of the General Stamp Act 14 EfiTect and penalty of omitting a Stamp _ on Check, where necessary . . "l6 2 Alteration of the law by recent Act . 16 Amount for which a Check may be drawn 17 How transferred . . . .18 Banker's obligation to pay . .18 Time of presentment . . .19 XVIU CONTENTS. As between Holder and Drawer . 19 As between the Holder And his own Banker 20 Where the parties do not live in the same place 20 As between the Holder and a Trans- ferer who is not a Drawer . . 20 What amounts to an engagement to pay a Check 21 Crossed Checks . . . -21 Statute relating to Crossed Checks . 22 What a Check is evidence of . .23 When it amounts to Payment . . 23 When it may be taken in Payment . 24 Whether Holder be Assignee of » Chose in Action . . . -24 Effect of Drawer's death . . .24 Of Fraud in filling up Checks . . 24 Branch Banks . . . ■ .25 When several must join in drawing Check 25 From what period Customers debited 25 Checks not protestable . . .25 Formerly referred toMasterto compute 26 Bight to cash a Check . . .26 Overdue Check . . . .26 Is within Bills of Exchange Acts . 26 May be taken in execution . . 20 Checks payable to order . . .26 CHAPTER rV. OF AN 10 D. What it is 28 Requires no Stamp . . . .28 Unless it amounts to a Note or Agree- ment 29 Need not be addressed to the Creditor 29 Bill in Equity to discover Considera- tion • . ,. . . . .29 I To restrain an Action . . .29 CHAPTER V. OF THE CAPACITY OF CONTRACTING PARTIES TO A BILL OR NOTE. Agents 31 Who may be an Agent . . .31 Special Agent and General Agent . 31 Actual and ostensible Authority . 31 How Agent appointed , . .31 Procuration 33 When Authority inferred . . .33 To indorse 33 When admitted . . . .33 Consequences of an Agent exceeding his Authority . . . .34 Unauthorized indorsement . . 34 Delivery 34 Pledging 34 Bill Brokers 35 When the Production of Agent's Au- thority may be required . . 35 How determined . . , .36 When it may be delegated . . 36 Personal liability of an Agent to third Persons 36 Parol evidence inadmissible to dis- charge the Agent . . . .37 Signature without Authority . . 37 Liability, how avoided . . .38 iLiability of Agent for Fraud . . 38 Bights of an Agent against third Per- sons ^ 38 Liability of an Agent to his Principal 39 Bights of Principal against third Per- sons .40 Partners 40 Partneksbip, both actual and osten- sible . . . . . .41 Agreement, inter ge, not to draw Bills 41 Cases in which Partners are both en- titled and liable in respect of a Bill 41 BightS' and Liabilities as between the Firm and the World . . .43 One Partner binding the others by Bills 43 By Promissory Notes . . .44 Must observe style of Firm . . 44 Farming and Mining Partnerships . 44 Partnerships not in Trade . . 45 Creditors carrying on a Trade . . 45 Consequences of Partner exceeding his Authority . . . .45 Where there is Notice . . .46 Common Partner in two Firms of the same Name • . . . .47 New Partner 48 Fresh Security . . . . .48 Dormant or Secret Partner . . 48 His Liability ■ • i ■ . . . .49 Nominal Partner . . . .49 CONTENTS. XIX Dissolution 50 Retirement of Secret Partner . .51 Occasional Partnerships . . 63 Executors and Administrators . 53 Their Rights and Duties . . . 53 Effect of Probate . . . .54 Debtor made Executor . . .54 Debtor becoming Administrator , 55 When Executors may sue as such . 56 Delivery after Indorser's death . . 56 Indorsement by one Executor of seve- ral 56 Personal Liability on a Bill . . 57 Joinder of Common Counts in Actions against 57 Infants 57 Lunatics 60 Persons Dbune . . . .61 Married Women . . . .62 Convicted Felons . . . .65 Aliens 65 Corporations and Banking Com- panies 66 Bank of England . . . .66 Banks of not more than six Partners 68 Banks of more than six Partners . 68 Joint Stock Companies . . .68 At Common Law . . . .68 Joint Stock Companies under 7 & 8 Vict. c. 110 . . , . . 70 Joint Stock Companies under subse- quent Acts 70 Persons acting in an official capa- city 71 Loan Societies 72 CHAPTER VI. OF THE FORM OF BILLS OF EXCHANGE AND PROMISSORY NOTES. On what substance they may be writ- ten 73 In what language . . . .73 In pencil or in ink . . . .73 Signature by a mark . . .74 Of the Superscription of the Place where made 74 Of the Date 74 Of the Superscription of the Sum pay- able 75 Of the Time when payable . . 76 Of Usance 76 Of the request to pay . . .77 Of the name of the Payee . . 77 Of the words " Order' or " Bearer" . 80 Of the Sum payable . . . .80 Bills and Notes under 20». . . 80 Bills and Notes under 52. . . .81 Of the words " Value Received" . 82 Other Statement of the consideration 83 Of the Drawer's Signature . . 83 Of the Direction of the Drawee . 84 Of the Place where made Payable by the Drawer 84 Of the Direction to place to Account 86 Of the words "As per Advice" - . 86 CHAPTER VI I. OF AMBIGUOtS, CONDITIONAL, AND OTHERWISE IRREGULAR INSTRUMENTS. Note payable to the Maker . .87 Equivocal Instruments . . .87 Bills and Not«s must be for payment of a sum df money and for that only ... ... And for money in specie . . .89 :And for a sum certain . . .90 And for payment of it . . .90 Must not suspend payment on a con- dition . . . . . .90 89 Period of payment may be uncertain if inevitable 92 Where several makers or several Payees are respectively liable or en- titled in the alternative . . .92 Must not be made payable out of a i particular fund . . . ■ .93 Irregular Bill or Note may be an agreement 93 XX CONTENTS. CHAPTER VII I. OF AGREEMENTS INTENDED TO CONTROL THE OPERATION OP BILLS OR NOTES. Various sorts of agreements . . 94 Effect of contemporaneous agreement written on the Instjrnment . . 94 Effect of an agreement subsequently written on the Instrument . . 95 Effect of agreement written on a dis- tinct paper 95 Agreement contemporaneous but col- lateral 95 Effect of an oral agreement . . 96 Delivery in the nature of an escrow . 96 Agreement to renew . . . .97 Agreement on Bill must be read . 97 Pleading an agreement . . .97 CHAPTER IX. OF THE STAMP. When Stamps were first imposed on Bills or Notes . . . .98 Adhesive Stamps .... 106 On Foreign Bills . . . .107 What regulations of former Stamp Acts are still in force . . . 107 In what cases a Bill or Note may be restamped 108 Effect of alteration of the Law . 108 What Bills or Notes are exempt from Stamps . . . . , , 108 Stamps on Foreign Bill and Notes . 109 Penalty on unstamped Instruments . 109 What Notes may be reissued . .109 Stamps on Foreign Bills . . . 109 Stamps on Irish or Colonial Bills . 109 What is such a making within the Kingdom as to subject to a Stamp 110 Effect of want of a Stamp on the In- ' strument ..... 110 Fresh Dies Ill Effect of post stamping against Law 111 Beservation of Interest does not make a larger Stamp necessary . 112 Nor post dating . . . .112 On Instruments which are in Law but Agreements . . . .112 Sufficiency of Stamp admitted by paying money into Court . . 113 When the objection to the Stamp should be taken .... 113 Pleading 113 CHAPTER X. OF THE CONSIDERATION. Presumption as to consideration on Bills and Notes . . . ,1X4 When it must be proved . . .116 In the case of an Accommodation Bill 115 Effect of New Rules of Pleading .117 Ambiguity of the expression " bond ^(fe holder for value" . . '.117 Distinction between holder without value and holder with notice . 117 Burthen of proof in the case of al- leged holder without value . . 118 In case of alleged holder with notice 118 Proof of notice .... 119 Plaintiff standing on prior title . 119 What amounts to notice.. . .119 Explicit notice , . . .119 Implicit notice . , . .119 Absflnence from Inquiry . .119 Gross neglience not equivalent to notice 120 Notice to an Agent . , . 120 Gift of a Bill or Note . . .' 120 Nature of the Consideration . .121 Pre-existing Debt . . . .121 Fluctuating Balance . . ! 122 Debt of a third person . . .122 A Judgment Debt .... 123 Compromise of a Claim . . . 123 Moral Obligation .... 123 Cases where more than one Consid- eration coraes in question . .124 Failure of Consideration . .125 CONTENTS. XXI Notice of absence of Consideration . 125 Accommodation Bill . . .125 Partial absence, or failure of Consid- eration ..... 126 PRiUD 12T Bills and Notes in Fraud of tliird Persons 1S8 Where a Party who has been defraud- ed must pay a Bill or Note, signed by him, without Consideration . 130 Illboal Considerations at Common Law 131 Immoral ...... 131 In contravention of Public Policy . 132 Illegal oe Void by Statute . . 133 Usury 134 Gaming 134 Horse-racing . . . . . 135 Innocent Indorsee . . . .135 New Security 136 Stock-jobbing .... 136 Other Considerations illegal by Stat- ute 138 Notice of fraudulent or illegal Con- sideration 139 Illegality of Consideration where Judgment recovered . . . 140 Part Consideration . . . .140 Renewal of Bill given on illegal Con- sideration . . . . . 140 CHAPTER XI. OP THE TRANSFER OF BILLS AND NOTES. Division of the Subject . . .142 What Bills Tkansfeeablb . .142 Effect of Indorsement of a Bill not negotiable 142 Of a Note not negotiable . . 143 Subsequent insertion of words creating negotiability . . .143 Modes of Teansfer . . .143 Blank Indorsement . . . .144 Special Indorsement . . . 1 44 On the face of Bill . . . .145 An Allonge . .... 145 Misspelt Indorsement' . . .145 By a plurality of holders . . 145 Conversion of blank into special In- dorsement . . . . . 145 Delivery necessary .... 146 Liability of Indoksee . . .146 How declined 14V By Indorsement sans recours . . 147 By Agreement . . . .147 By converting blank into special Indorsement .... 148 May be suspended on a Condition . 148 What Indorsement admits . . 148 Striking out Indorsements . .149 BiQHTS OF Indoesee . . . 1 49 Of Transferee to compel Indorsement 150 Where a Bill is re-indorsed to a prior Indorser 150 Where the Indorser is a Trustee . 151 Restrictive Indorsements . . . 152 Liability of Persons transferring- BY Demveet . . . .153 No Liability on the Instrument . 154 Nor in general on the Consideration 154 Where the Bill is considered as sold 154 Unless Bill or Note given for pre- existing Debt . . . .155 Other exceptions to the general rule 156 Sale to an Agent of a foreign Prin- cipal 157 Warranty of Genuineness . . 157 No Liability to subsequent Transferee 157 Effect of Fraud . . . .157 Rights of Teansfeeeb by Deliveey 157 Foi mer effect of Negliglence in the Transferee 158 Present effect of Negligence or Fraud 158 Title of an Agent . . . .159 Pledging Bills ph,yable to Bearer . 159 Other Instruments payable to Bearer 159 Metallic Tokens . . . .159 Transfer undee Peccliar Ciecum- stanoes . . . . .160 Before Bill filled up . . .160 After Refusal to accept . . .160 Where the Transferee has no notice 161 After due 161 Transfer of overdue Check . .163 Of Note payable on Demand . .164 Pleading 164 Equitable Relief in case of outstand- ing overdue Bill .... 164 Burthen of Proof . . . .164 Check drawn on Bearer's Banker . 164 After abandonment of right . . 1 65 After Payment . . . .165 By other Parties . . . .165 After premature Payment . .166 After partial Payment . . . 166 Where there is a Question whether the Bill was paid or transferred . 166 Transfer to Acceptor . . . 167 Transfer for part of the Sum due . 167 For Residue unpaid . . .167 After Release 167 After Action brought . . 167 XXll CONTENTS, Transfer abroad After Holder's Death After Bankruptcy . lAfter Marriage fiy deposit y/Uh a Banker By Will .... Donatio Mortis Causft How it resembles a Legacy 168 :68 168 168 168 169 169 171 How it differD from a Legacy . Execution Larceny Embezzlement . . . • Eftiect of a Transfer in removing Technical difficulties in suing When a Court op Equity will hb- BTRAIN NkSOTIATION . m Itl- 172 172 172 172 CHAPTER XII. OF THE PRESENTMENT FOR ACCEPTANCE. Advisable in all cases . . . 174 Necessary where Bill is drawn at or after sight 174 When to be made .... 174 At what hour .... 176 Excused by putting Bill into circu- lation 176 Or by other reasonable Cause .176 To whom it should be made . . 177 What time may be given to the Drawee Consequence of Negligence in Party presenting Proper Course for Holder when Drawee cannot be found, or is dead Pleadino 177 177 177 177 CHAPTER XIII. OF ACCEPTANCE. Meaning of the Word i Liability of Drawee before Accept- , ance A Draft dispensing with Accept- ance Liability of a Banker at whose Bank ■ a Bill is made payable by the Ac- ceptor Liability to the Customer 178 178 179 179 179 Liability of the Banker to a Holder 179 By whom it may be given . . 180 Not by a series of Acceptors . . 180 When 181 Before Bill filled up . . . 181 Not before Bill in existence . . 182 After due, or after prior refusal to accept 182 Presumption as to time of Accept- . ance . . . . . . 183 Acceptance of Inland Bills must be , in Writing on the Bill . . '. 183 What will amount to an Acceptance in Writing on the Bill . . .183 What will amount to an Acceptance of Foreign Bill . . . .184 A Promise to pay . . . .184 To whom it may be made . 184 Is irrevocable 185 What else amounts to Acceptance of a Foreign Bill . . . .185 What engagement Holder may re- quire of Acceptor . , . 186 What should be his conduct in case of qualified Acceptance . . 186 Qualified Acceptance . . . 186 Conditiona.1 Acceptance . . . 186 Partial or Varying Acceptance . 187 Payable at particular place . ,188 Presentment for payment there . 188 Effect of two Acceptances . on the same Bill 188 Delivery or Notice necessary to com- plete Acceptance . , . 189 Cancellation of Acceptance by Drawee 189 By Banker ..... 189 By other Parties .... 190 Liability of Acceptor . . . 190 How discharged .... 190 By Waiver 190 Cancellation by the Holder . . 192 Security by Specialty . . .192 Pleading . . • . .192 What Acceptance admits . . 192 Where Drawee precluded from dis- puting Acceptance . . . 194 CONTENTS. XXlll CHAPTER XIV. OF PRESENTMENT FOR PAYMENT, How made 195 la case of Bankruptcy or Insolvency 196 Unnecessary to charge a Guarantor 197 Where Drawee absconds . .197 In case of Drawee's Death . . 197 Of Holder's Death . , . .197 When to be made .... 197 Time, how computed . . . 197 Months ' . 197 Days 198 Bills and Notes at sight . . . 198 Usance 198 Old and New Style . . . : 199 Days of Grace . . . .199 What in different Countries . .199 How reckoned .... 200 Sundays and holidays, how reckoned 200 Presentment before expiration of Days of Grace . . . .200 On what Instruments Days of Grace allowed . . . . .200 When Presentment of Bill payable at sight is to be made . . . 201 Of a Bill payable after sight . .201 Of a Bill of Exchange payable on Demand 201 General Rule 202 Different sorts of Instruments pay- able on Demand . . '. . 203 Of a common Bill of Exchange pay- able on Demand .... 202 Of a Check 203 Of a common Promissory Note pay- able on Demand .... 203 Of a Bank Note . . . .203 Of other Bankers' Paper . . . 204 When no time of payment is speci- fied 204 At what Hoar .... 204 Where, when a Bill is made payable at a particular place . . . 205 In an action against Indorser . . 206 Pleading 207 When a Note is made so payable . 208 Supplementary Memorandum . . 208 Consequence of not duly Presenting 209 Presentment not necessary to charge Acceptor 209 When Neslbct to Phesent ex- CDSED 209 Of Bill seized under extent . . 209 By circulating .... 209 By the absconding of the Drawee . 210 By Absence of Effects in the Drawee's hands . . . .210 Not by declaration of Acceptor that he will not pay .... 210 By returning Notes ■ . .. .210 Advantage from Neglect, how waived ..... 210 Pleading 211 Evidence of Presentment . .211 CHAPTBE XV. OF PAYMENT. To WHOM IT SHOULD BE MADE . To a wrongful Holder of Instru- ments payable to Bearer Of Instruments not payable to Bearer Effect of Payment by Acceptor By Drawer Meaning of the word " Betirb" By a Stranger .... By one, who Is both Agent for the Acceptor and also Indorser , When to be made . . \, At what Time of Day Subsequent Tender .... Premature Payment After Action brought 212 Payment by Bankers' Notes or Checks .... .,217 213 What amounts to Payment . . 218 Legacy . 218 214 Appropriation of Payments . 218 214 Rateable Appropriation . . 220 214 Part Payment '. . 221 215 When Payment will be presumed . 221 216 Evidence of Payment . 222 Of Delivering up the Bill . 222 216 Of giving a Receipt . 222 216 Effect of Receipt . . 223 216 Tender of part Payment . . 223 216 Plea of Payment . . 223 217 Retraction of Payment . . 223 217 XXIV CONTENTS. CHAPTER XVI. OF SATISFACTION, EXTINGUISHMENT, AND SUSPENSION. Satisfaction Not necessary before Breach . Its Requisites Payment of a smaller Sum by third Party Engagement by third Party . Belinquishing a Suit When a Bill operates as Satisfac- tion EXTINGUISBMENT .... Effect of Warrant of Attorney ' 225 Of Transfer to an Acceptor 228 225 Op Jddgment . 228 226 Of Exeoction 228 Of Discharge from Execution 228 226 Of waiving a Fieri Facias 229 227 Of taking a Deed . 229 227 Suspension . 229 Effect of Renewal . 229 227 Of Debtor becoming Administrator 230 228 Clf Covenant not to sue within ilim- 228 ItedTime .... 230 CHAPTER XVII. OF RELEASE. What it is 231 Release at Maturity . . ,231 Premature Release . . . .231 By a Party who is not the Holder . 231 To Drawee before Acceptance . 232 By or to one of several jointly enti- tled or liable . . . .232 Restrained by a Recital . Covenant not to sue Covenant not to sue for a limited Time Appointment of Debtor Executor . Right to hold securities for released Debt 232 232 232 233 233 CHAPTER XVIII, OF THE LAW OF PRINCIPAL AND SURETY IN ITS APPLICATION TO BILLS AND NOTES. General Principles of the Law 234 Division of the Subject . 235 What Parties to a Bill abb Pbin- CIPALS, AND WHAT PARTIES ARE Sukbties 236 On Accommodation Bills 237 On Promissory Notes . 237 On a Joint and Several Note 237 What Conddot of the Cee DITOR DOBS OB dobs not DiSOHABGE THE Sukbty 238 Receipt of Payment 240 Release .... 240 Covenant not to sue 240 Release in Law 241 Agreement not to sue 241 Renewing a Bill • . 241 Misusing Securities 241 Discharge from Execution 241 Part Payment 242 Offer to give Time . 242 Cognovit, or Warrant of Attor ney . 242 Judgment Bankruptcy Insolvency Compounding Collateral Security . Warrant of Attorney ... Discharge of prior Parties by giving Time to Drawee who has not ac- cepted How THE Discharge of the Surety MAY be PREVENTED How it is waived .... What Conduct of the Creditor TOWARDS the SuRETY WILL DIS- CHARGE THE Principal Rights of Sureties Surety's Right to Indemnity . Of Contribution between Co-Sure- ties . . . Action for Contribution between Co-Sureties . . . . 242 242 242 243 243 244 244 244 245 246 246 246 246 247 CONTENTS. XXV CHAPTER XIX. OP PROTEST AND NOTING. Protest necessary on Foreign Bills, and why . 249 By whom to be made . 249 Office of a Notary . . 250 When to be made . . 260 Where to be made . . 250 Form of Protest . 251 Stamp on Protest . . 251 Protest for better Security . 251 Noting, what 251 Notice of Protest . . . .252 Copy of Protest . . . .252 When Protest excused . . . 252 Protest of Inland Bills and Notes . 253 Protest of lost Bill . . . .254 Pleading 254 Evidence 254 Gfieci of a Promise to pay . . 254 CHAPTER XX. OP ACCEPTANCE SUPRA PROTEST, OR POR HONOR. Mode of such Acceptance . . 255 Who may so accept . . . 256 Conduct which Holder should pur- sue . ■ 256 Liability of Acceptor «Mpra Protest . 257 What Acceptance supra Protest ad- mits 258 Eights of Acceptor «M;)ra Proiesi . 259 CHAPTER XXI. OP PAYMENT SUPRA PROTEST, OR POR HONOR. What and how made . . . 260 Eight of Party paying supra Pro- teat .260 Notice of Dishonor by . . . 261 Cannot revive Liability . . .261 Payment without Protest . . 261 Safest mode of taking up a Bill for Honor . . . .' . .261 Accommodation Bills . . .261 When the Protest should be made . 262 Ro payment supra Protest of Promis- sory Notes 262 CHAPTER XXII. OP NOTICE OP DISHONOR. Division of the Subject . . 264 PoKM or THE Notice . . . 264 Description of the Instrument . . 269 Statement of the Party on whose be- ' half Notice is given . . . 269 Notice of Protest . . . .270 Mode ow Transmitting it . . 270 By Post 270 Direction of the Letter . . . 270 Evidence of Notice by Post . .271 Special Messenger .... 271 How to be sent in case of Foreign Bill . . . . . .272 At what Place .... 272 When to be given . . . .273 If the Parties live in different Places 273 In the same Place . . . .275 When a Person receiving Notice should transmit it . . . 275 May be given on the Day of Dis- honor 275 When, if the Bill is deposited with Banker, Attoi ney or Agent . . 276 Notice through Branch Banks . . 276 Sundays and Holidays, how reckoned 277 Burden of Proof . . . .277 XXVI Br WHOM Notice should be given By an Agent .... By a Pledgee ,- . . . To WHOM .... To an Agent or Attorney To a Bankrupt Where the Party is Dead Need not be given to Acceptor To Parties jointly liable . To a Transferrer not indorsing When to a Guarantor To an Indorser giving a Bond^ Consequences o; Neglect What excuses Notice . Agreement of the Parties Countermand of Payment NoEflfects . ' . oontj:nts. . 278 Where there is Reasonable Expecta- . 279 tion that the Bill will be honored 288 . 279 Ignorance of Party's residence . 289 . 280 Accident 290 . 281 Where a Bill is drawn by several on . 282 one of themselves . . . 291 . 282 Death, Bankruptcy or Insolvency . 282 will not excuse . . . . . 291 . 283 Insufficient Stamp . . . .291 . 283 Note not Negotiable . . .291 . 284 Consequences op neglect, how . 284 WAIVED 291 . 285 Laches not imputable to the Crown 293 . 285 Pleading where Notice is excused or . 285 waived 293 . 286 Evidence of Notice . . . .293 . 286 CHAPTER XXIII. OF INTEREST. The Nature of Interest . . .295 From whit Time it runs when Pay- . able by the Terms of the Inscru meut . . . . From what Time it runs when not made Payable by the Terms of the Instrument . . . . From what Time it runs as against an Indorser To what Period it is computed When Money is paid into Court In Troyer After a Tender, .... How Bankers should charge it on Checks . . . . , . Recovery of Interest after receipt of the Principal . . . .298 When Interest is not recoverable . 298 When an Engagement to give a Bill will create a Liability to Interest Liability of a Guaranteeing .Party to Interest . . . . . 298 How Interest is recovered . . 298 296 296 297 297 297 297 298 298 298 The Rate of Interest . . .299 Indebitatus Count .... 299 Usury 299 At Common Law .... 300 Statutes against it . . . . 300 Their Construction .... 300 Substance of Enactments . . 300 There must be a Loan . . . 301 Usury ob Discount .... 301 Usurious security for Good Debt . 302 Where the Charge is not for the Loan but for the Labor . . 302 There must be a Corrupt Intention . 303 Hazard of tne Principal 'Money . 304 Advance of Goods .... 30g Irish, Colonial or Foreign Interest . 305 Substituted Security . . . 306 Separate Instruments . . . 307 Innocent Indorsee .... 307 Statutes exempting certain Bills and Notes from the Usury Laws . 307 Total Repeal of the Usury Laws . 309 Pleading 309 CHAPTER XXIV. OF THE ALTERATION OP A BILL OR NOTE. Effect of alteration at Common Law 310 Of Deeds 310 Of Bills and Notes . . . .311 Under tee Stamp Acts . . . 812 Where an alteration will not vitiate 312. Before Bill issued . " . . .313 In Correction of a Mistake . . 314 When the alteratipn of the Instru- ment extinguishes the Debt , 314 Renewal of altered Bill . . . 315 When alteration need not be pleaded 315 When it must be pleaded , .315 Requisites of Plea .... 316 Burthen of Proof , . . .316 CONTENTS. xxvu CHAPTER XXV. OF THE FORGERY OF BILLS AND NOTES. Definition of the Crime . . . 317 Existing Statutes .... 317 Forgery of Void Bills . . .318 Of Invalid and Informal Bills . . 318 Forgery by Misapplication of a Genu- ine Signature .... By Signature of a Fictitious Name . By Fraudulent Signature of a Man's own Name Uttering a Genuine Signature, and Personating the Party signing . 320 Misrepresentation of Authority . 320 Alteration 320 Uttering 321 Procuring to utter . . . .321 318 319 319 Statement of the Instrument in the Indictment . . ■ . . Where several make distinct Parts of the Instrument The Party whose name is Forged a Competent Witness Forgery of Foreign Bills Evidence in Criminal Oases Civil Conseqdences op Forgery . When the Payment of a Forged Bill is good When Money paid in Discbarge of a Forged Bill may or may not be recovered back .... Inspection of a Bill supposed to be forged ....... 321 322 .322 322 322 323 . 323 324 326 CHAPTER XXVI. OF THE STATUTE OF LIMITATIONS IN ITS APPLICATION TO BILLS AND NOTES. Policy of the Law ..... 327 When Introduced .... 328 The present Statute . . . 328 Division of the Subject . . . 328 General Operation op the Statute 329 Does not destroy the Debt . . 329 Foreign Statute of Limitations . 330 What Legal Proceedings it Limits 330 Merchants' Accounts . . . 330 Effect of Statute on Title of a Subse- quent Transferee When it begins to run . On Bill payable after Date Payable on a Contingency Payable by Instalments . Against an Administrator On a Bill at or after Sight Bill payable on Demand . After Demand In case of Fraud la the case of an Accommodation Bill When there has been both Non-ac- ceptance and Non-payment . Up to what Period the Time op Limitation is Compcted Death of Parties after Action . How THE Operation op the Statute IS OBVIATED BY ISSUING A WbIT . The Saving Clause Infants 335 Imprisonment ..... 335 Plaintiff's absence beyond Seas . 335 Defendant's absence beyond Seas . 336 Successive Disabilities . . . 336 What Acknowledgments will take A Debt out of the Statute . 336 Lord Tenterden's Act . . . 337 Division of the Subject . . . 337 Of what sort the Acknowledgment 330 must be . . . . . 337 331 Evidence of Date . . 338 331 Construction .... . 339 331 Mutual running Account . 333 331 Devise . 339 331 Acknowledgment by Executors . 339 331 Notice in Newspapers . 340 332 Part Payment .... . 340 332 Appropriation of Payments . 340 332 Payment by Bill . 340 Payment by Goods . . 340 333 Stamp on Acknowledgment . . 341 Statement of Account . 341 333 Payment of Interest . 341 When Acknowledgment must be 333 made . 341 333 Payment of Money into Court . . 342 By whom Acknowledgment must be 334 made . 342 335 To whom .... . 345 XXVlll CONTENTS. What evidence is required of the Ao- knowledgment .... 345 How THE StATDTB IS TO BE TAKEN ADVANTAGE OF ... . 347 Form of the Plea . . . .347 Replication of the Statute : . 347 Replication to a Plea of the Statute 348 When, independently of the Stat- CTB, Lapse of Time is a Bae . 348 CHAPTER XXVII. OF THE LAW OF SET OFF AND MUTUAL CREDIT IN RELATION TO BILLS AND NOTES. Nature of Set-ofif . . . .349 Unknown to the Common Law . 350 Recognized in Equity . . . 350 Introduced by Statute . . . 350 Division of the Subject, . . . 351 The Geneeai, Statute op Set-off . 351 The Sums to be set off must be Debts, ...... 351 Legal Debts 351 Subsisting Debts . . . .352 Actually due, ..... 352 And at time of Trial . . .352 Mutual 352 Statutes Permissive, not Imperative 353 Pleading . . . . . 354 Set-opf in Bankruptcy . . 354 When the mutual Credit must have existed Fraudulent Set-off .... Attempt to deprive of Set-off . What Mutual Credit is . Need not be of Money The Debts need not be due Mutual Credit need not be intended Breach of Trust .... Does not extinguish a Lien How Mutual Credit is to be taken advantage of ... . Set-off in Equity .... Of Cases where a Stipulation, not THE SUBJECT OF A SbT-OFP, IS A BAB TO THE ACTION 354 355 356 356 356 356 357 357 357 357 358 359 CHAPTER XXVIII. OF A LOST BILL OR NOTE. Title of the Finder . . . .360 Proper course for the Loser to take ,360 Notice of Loss .... 361 Presentment and Notice of Dishonor of a Lost Bill . . . .362 Bill in the hands of an adverse Party 362 Whether an Action lies on a De- stroyed Bill 362 Will not lie on ^ Lost Bill . . 363 Unless not Negotiable . . . 364 Pleading . . L6ss after Action brought Loss of Half Note . Trover for Lost Bill Remedy for Loser in Equity At Law .... New Statutable Jurisdiction Courts of Law On whom the Loss of a Bill trans mitted by Post, &c., will fall . 367 of 364 364 364 365 365 366 366 CHAPTER XXIX. HOW FAR A BILL OR NOTE IS CONSIDERED AS PAYMENT. Suspends the Remedy on a Simple Contract 368 Bill given as Collateral Security . 369 Form of Pleading .... 369 But not on a Contract under Seal . 370 Does not suspend Distress . . 37o CONTENTS. XXIX Payment of Attorney . . . 370 \ Consequence of a Creditor taking Bills of a Third Person . . 370 Of tiie Creditor's Agent taking the Debtor's Bill . . . .371 What a Creditor who has been paid by a Dishtjnored Bill must prove 372 Where the Transferer knew the In- strument to be of no Value . . 372 A Lost or Destroyed Bill, when Pay- ment 372 Payment by Bank Notes or Bill or Notes payable to Bearer . . 372 Where a Bill is renewed . . . 373 Taking a Bill determines a Lien . 373 But not on Land .... 374 Is earnest 374 CHAPTER XXX. OF SETS, PAPTS, AND COPIES OF BILLS. What a Bill drawn in parts is . . 375 The'whole set but one Bill . . 376 To whom the Bill belongs when the parts are in different hands . . 376 How many parts required . . 376 Effect of omitting to refer to the other parts . Liability of Drawee Liability of Indorser Copies of Bills Substitutions . 376 377 377 377 378 CHAPTER, XXXI. OP FOREIGN BILLS AND NOTES. What are Foreign and what Inland, Bills . . . . -379 Statute 19 & 20 Vict. . . .379 Presumption of being an Inland Bill . . . . .' '380 Stamp on an Inland Bill purporting to be a Foreign one . . . 380 Sets of Bills . . . . .380 Presentment of Foreign Bills . .380 Acceptance of Foreign Bills . . 380 Protest 380 CHAPTER XXXII. OF THE EFFECT OP FOREIGN LAW RELATING TO BILLS OF EXCHANGE AND PROMISSORY NOTES. Op the Conpliot op the Laws op Protest and Notice of Dishonor 385 DippERENT Countries relatinq Acceptance 386 TO Bills 381 Rate of Interest .... 386 General Principles of the English Immoral, Illegal, and Injurious Law 382 Contracts . 386 Five Principal Rules 383 Revenue Laws op other Countries Cases where the Lex Loci Cok- DISREGARDED . . . . 387 TRAOTnS governs 384 Stamps on Foreign Bills . 387 Foreign Acceptance 384 On Irish or Colonial, Bills 387 Foreign Indorsement of Foreign Raising objection to Stamp . 387 Note 384 What is such a making within the Foreign Discharge .... 384 Kingdom as to subject to a Stamp 388 Cases in which Lex Loci Solutionis Presumption that Bill was drawn GOVERNS 385 Abroad . . 388 Foreign Indorsement of English Application op the Lex Fori to Note 385 Foreign Bills . . . . 389 Time of Payment .... 385 Statutes of Limitation 389 XXX CONTENTS. Sey;-off . Power of Arrest Statute of Frauds 389 38a 390 Protest and Notice of Dishonor . 390 Pleading 390 Burthen of Proof . . . .390 CHAPTER XXXIII. OF THE REMEDY BY ACTION ON A BILL. Who may sue on a Bill . . . 391 In another's Name . . • . . 392 Joining Count on Consideration . 392 Against what Parties Actions may be brought 392 Judgment against two Parties . 392 Where Defendant is liable in two cnpacities on the same Bill . . 392 PBOCEEDiires FOB Costs . . . 392 Costs of Actions that bare been brought against the P»rty suing . 393 Tkoveb ob Detindb fob a Bill . 393 Who may sue 393 Amount of the Verdict . . . 394 Effect of Judgment in changing Pro- perty 394 Relief in Equity . . . .394 Affidavit to hold to Bail . . 394 Arrest for Interest .... 394 Statement of the Sum . . . 394 That the Bill is due . . .395 Statement of Indorsements . .395 Character of Defendant . . . 395 Character of Plaintiff . . .395 Description of Defendant by his Initials -395 Statement of Consideration . . 396 Affidavit good in Part . , . .396 Statute 18 & 19 Vict. c. 67 . . 396 Venue 398 Inspection of the Bill . . . 398 Paktioulabs of Demand . . 399 Tender . . . . . .399 Consolidating Actions . . . 399 Stayino Pboceedings . . . 399 In an Action against the Acceptor . 400 When without the Costs in other Actions 400 Summary Interposition of the Court 400 Setting aside Pleas . . . 401 Re-exchange 401 Other Damages .... 402 Advantages of suing on the Bill rather than on the Consideration 402 Interposition of Equity . . . 403 When Equity will restrain an Action 403 Discovery in aid of Action or De- fence 403 CHAPTER XXXIV. OF THE PLEADINGS IN ACTIONS ON BILLS AND NOTES. Old Fobms of Action . 406 Debt .... . 406 Assumpsit . 407 Declabation . . 407 Statement of the Parties to the In- strument 407 Of Christian Name by Initials , 408 Description of Instrument . . 408 Statement of Acceptance . , 409 Of Presentment for Payment . . 409 Of Notice of Dishonor . . .409 Of Excuse for omitting to present Payment, &c 409 Of Notice of Indorsement . . 410 Of Protest 410 Of Maturity- of Instrument . . 410 Allegation of Promise to pay . .411 Declaration on a Bill drawn in Sets 412 Assignment of the Breach . .412 Damages 412 Fleas 412 General Effect of New Rule . .412 Non Assumpsit . . , .412 Nil Debet 413 General Issue by Statute . . 413 Traverse of Acceptance . . . 413 Traverse of Indorsement . . . 413 Absence of Consideration . . 414 That Plaintiff is not the Holder .415 Plea of Payment . . . .415 Effect of Pleading over . . .415 Fraud 415 Payment 416 Satisfaction 416 Duplicity of Pleas under the old Law .416 Sham and Ensnaring Pleas . . 418 Replication de Injubia superseded 418 Replication to Plea denying Consi- deration: 4]g Pleading an Estoppel . . . 419 Diatributire Replication , . . 419 CONTENTS. CHAPTER XXXV. EVIDENCE. Right to begin .... 420 Splitting Plaintiff's Case . . .420 Competency of Witnesses . .421 Declarations at tlie Time of making the Instrument . . . .421 Declaration by prior Parties . .421 Effect of Admissions on Record . 422 Proof of Signature . . . .422 Collateral Security, Memorandum of 422 Identity ofDefendant . . . 422 Evidence of Consideration . . 423 Production of the Bill . . .423 Proof of Mark . . . .423 Proof of Name . . . .423 Proof of Signature by Agent . . 423 Kffect of Admission under Judge's Order 428 Bill or Note, Evidence under the Common Counts .... 423 What a Paid Check is Evidence of as between Drawer and Payee . 4'24 As between Banker and Customer . 425 Whether an Unpaid Chec-k is Evi- dence 425 Proofs in variods Actions . . 425 Payee V. Maker or Acceptor . . 425 Indorsee v. Maker or Acceptor . 425 Indorsee v. Indorser or Drawer . 426 Payee v. Drawer .... 426 Receipt 426 Statements by deceased Persons . 426 Amendment at the Trial . . 426 CHAPTER XXXVI. OF THE BANKRUPTCY OF PARTIES TO A BILL OR NOTE. Relation of the Fiat or Adjudication of Bankruptcy . . . .430 What amounts to Notice of Act of Bankruptcy . . . . .431 Bill to Petitioning Creditor . . 432 In what Cases the Holder may prove . . . . . . 432 Bills and Notes not yet due . . 432 Proof of a Bill or Note payable on Demand ..... Bill payable after Notice Irregular Bill or Note Bill cannot be proved against a Man not a Party to it . Proof of Lost Bill .... Proof by a Surety or Person liable for the Debt of a Bankrupt . Holder may elect between Proof and Action ..... Mutual Accommodation Bills Where there has been Specific Ex- change of Securities . What amounts to Specific Exchange 437 Party to Mutual Specific Exchange of Paper must pay his own Paper before he can prove Mutual Accommodation without Specific Exchange After Holder has proved, no further Proof 437 433 433 433 433 433 433 435 435 435 437 437 Cases of Mutual Accommodation without Specific Exchange, Mu- tual Bankruptcy, and Cash Bal- ance Accommodation Bills in the Hands of an Indorsee for Value Proof of Interest Of Expenses, Re-exchanj>e, Ac. Where there are several Fiats or Ad- judications of Bankruptcy, under vrhich, and for how much, the Holder may prove Proof against joint and separate Es- tate Where a Creditor holds a Bill as a Security .... Proof where a Transfer after Ac- ceptor's Bankruptcy . . . 444 Acts of Bankruptcy in respect of Bills 445 When a Bill may be a good Peti- tioning Creditor's Debt . . 445 Evidence of the Date of a Bill . . 446 What Transactions in respect of Bills will constitute a/Trading within the Bankrupt Laws . . 447 Reputed Ownership . . . 447 Debts may be within it . . . 447 Bills the subject of reputed Owner- ship 448 437 442 442 443 443 443 444 XXXll CONTENTS. Bills in the Hands of a Banker, &c., becoming Banl^rupt, do not pass to Iiis Assignees . . ' . . 448 Effect of Bankraptcy on Choses in Action of the Bankrupt's Wife . 450 ■ Transfer in Case of Bankruptcy of Holder 450 Where the Bankrupt is a Trustee . 450 When the Transfer of a Bill by a Bankrupt is Payment . . . 450 Transfer to a Bankrupt . . . 451 When his Capacity admitted . . 451 Bill or Note for Debt barred by Cer- tificate 451 Fraudulent Prepebencb . . 451 VoLUNTABT TbANSPEE . . . 452 DisCHAROE OF Insolvent Debtors . 452 Acts recently in Force . . . 453 Their general object in regard to Bills and Notes .... 453 Their effect on the Liability of the Insolvent to Holders of a Nego- - tiable Instrument . . . 453 Effect of Discharge of one of two Makers of a Note . . . 454 Description of the Bill in the Sche- dule 454 Notice to the Creditor . . . 455 Effect of the Insolvent's Discbarge on the Liability of other Persons to the Holder . . . .455 Effect of a Bill or Note given for the Debt for which the Insolvent has been discharged . . . . 455 Of a Bill or Note given to prevent Opposition 456 Effect of Vesting Order . . .456 CONTENTS OF APPENDIX. SECTION I. NOTARY'S FEES OF OFFICE. As settled July 1, 1799 . . . . . . . .457 SECTION II. STATUTES. 9 & 10 Will. III. o. 17. An Act for the better Payment of Inland Bills of Exchange . . . 458 3 & 4 Anne, c. 9, s. 1. An Act for giring like Eemedy upon Promissory Notes as is now used upon Bills of Exchange, and for the better Pay menT of Inland Bills of Exchange . 460 17 Geo. III. o. 30, ss. 1, 2, 4, made perpetual by 27 Geo. III. o. 16. An Act for further restraining the Negotiation of Promissory Notes and Inland Bills of Exchange, under a Limited Sum, within that Part of Great Britain called England . . . . . . . . .461 48 Geo. III. 0. 88, as. 1, 2, 3, 4. An Act to restrain the Negotiation of Promissory Notes and Inland Bills of Ex- change under a Limited Sum in England ..... 463 55 Geo. IIL o. 184, ss. 10 to 29. An Act for repealing the Stamp Duties on Deeds, Law Proceedings, and other written or printed Instruments, and the Duties on Fire Insurances, and on Legacies and Successions to Personal Estate upon Intestacies, now payable in Great Britain, and for granting other Duties in lieu thereof. . . 465 3 XXxiv CONTENTS OF APPENDIX. 58 Geo. III. o. 93. An Act to affovd Relief to the bon&fide Holders of Negotiable Securities, with- out Notice that they were given f.^r a Usurious Consideration . . 477 1 & 2 Geo. IV. c. 78. An Act.to regulate Acceptances of Bills of Exchange .... 477 7 & 8 Geo. IV. o. 14. An Act for declaring the Law in relation to Bills of Exchange and PromisBory Notes becoming payable on Good Friday or Christmas Day . . . 478 9 Geo. 4, p. 14, ss. 1,' 3, 4, 5, 8. An Act for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements ....... 480 2 & 3 Will. IV. o. 98. An Act for regulating the Protesting for Nonpayment of Bills of Exchange drawn payable at a Place not being the Place of the Residence of the Drawee or Drawees of the same . . . . . . .481 3 & 4 Will. IV. c. 42, ss. 12, 28, 29. An Act for the further Amendment of the Law and the better Advancement of Justice . . . . . . , . . . .482 5 & 6 Will. IV. o. 41. An Act to amend the Law relating to Securities given for Considerations arising out of Gaming, usurious and certain other illegal Ti:ansactlons . . 483 6 & 7 Will. IV. o. 58. An Act for declaring the Law as to the Day on which it is requisite to present for Payment to the Acceptors or Acceptor supra Protest for Honor, or to the Referees or Referee in case of Need, Bills of Exchange which had been dis- honored ......... 487 1 & 2 ViOT. 0. 110. An Act for abolishing Arrest on Mesne Process in Civil Actions, except In cer- tain Cases ; for extending the Remedies of Creditors against the Property of Debtors ; and for amending the Laws for the Relief of Insolvent Debtors in England. [16th August, 1838] ...... 488 2 & 3 ViOT. 0. 29. An Act for the better Protection of Parties dealing with Persons liable to the Bankrupt Laws. [19th July, 1839] ...... 491 2 & 3 ViOT. 0. 37. An Act to amend and extend until the First day of January, One thousand eight hundred and forty-two, the Provisions of an Act of the First Year of her present Majesty, for exempting certain Bills of Exchange and Promissory Notes from the Operation of the Laws relating to Usury. [29th July, 1839] 492 CONTENTS OF APPENDIX. XXXV r & 8 ViOT. 0. 32. An Act to regulate the Issue of Bank Notes, and for giving to the Governor and Company of the Bank of England certain Privileges for a limited Period. [19th July, 1844] . . . . . . . .493 12 & 13 Vict. o. 106. An Act to amend and consolidate the Laws relating to Bankrupts. [1st August, 1849] . . . . . . . . .494 16 & ir ViOT. 0. 59. An Act to repeal certain Stamp Duties, and to grant others in lieu thereof, to amend the Laws relating to Stamp Duties, and to make perpetual certain Stamp. Duties in Ireland. [4th August, 1853] .... 500 17 & 18 Vict. c. 83. An Act to amend the Laws relating to the Stamp Duties. [10th August, 1854] . . . . . . . . . .503 17 & I8V10T. 0.90. An Act to repeal the Laws relating to Usury and to the enrolment of Annui- ties. [10th August, 1854] . . . . . . .509 17 & 18 Vict. c. 125, s. 87. An Act for the further Amendment of the Process, Practice and mode of Plead- ing in and enlarging the Jurisdiction of the Superior Courts of Common Law at Westminster, and of the Superior Courts of Common Law of the Counties Palatine of Lancaster and Durham. [I2th August, 1854] . . . 510 18 & 19 ViOT. 0. 67. An Act to facilitate the Remedies on Bills of Sxcbange and Promissory Notes by the Prevention of frivolous or fictitious Defences to Actions thereon. [23d July, 1855] . . . . . . . .510 19 & 20 ViOT. 0. 25. An Act to amend the Law relating to Drafts on Bankers. [23d June, 1856] . 514 19 & 20 ViOT. c. 97. An Act to amend the Laws of England and Ireland affecting Trade and Com- merce. [29th July, 1856] . . . . . . .514 21 ViOT. 0. 20. An Act for granting a Stamp Duty on certain Drafts or Orders for the Payment of Money. [21st May, 1858] . . . . . . .517 21 & 22 ViOT. 0. 79. An Act to amend the Law relating to Checks or Drafts on Bankers. [2d August, 1858] . . ,. . . . , . .518 XXXVl COKTENTS OF APPENDIX. 23 &24 ViOT. 0. HI. An Act for granting to Her Majesty certain Duties of Stamps, and to amend the Laws relating to the Stamp Duties. [28th August, laSO] . . . 519 24 & 25 ViOT. 0. 134. An Act to amend the Law relating to Bankruptcy and Insolvency in England. [6th August, 1861] . . . , . . ■'. . .520 26 & 27 Vict. o. 105. An Act to remove certain Restrictions on the Negotiation of Promissory Notes and Bills of Exchange under a limited Sum. [28th July, 1863] . .521 INDEX .......... 523 TABLE OF CASES CITED. A. Abbott T. Aslett, 410 T. Douglas, 76 . v. HenSrich, 83, 96 V. Hicks, 356 T. Pomfret, 452 Abel V Sutton, 51, 52 Abeil V. Daniell, 452 Abraham v. Dubois, 388 Abrahams v. Skinner, 111 Abtara v. Cunningham, 55 Absolom T. Marks, 6 Acheson v. Fountain, 144, 153 Ackerman t. Ehrenspurger, 298 Aokland v. Pierce, 271 V. Adams, 164 Adames v. Bridger, 435 Adams v. Gregg, 191, 192 V. Jones, 146 V. Palk, 416 T. Wordley, 187 Adkins t. Farrington, 435 Aflalo V. Pourdrinier, 434 Aggs V. Nicholson, 70 Alcard v. Wesson, 453 Alcock T. Alcock, 60 Alderson t. Langdale, 315 Aldred t. Constable, 452 Alexander v. Birchfield, 20 V. M'Kenzie, 33 , T. Strong, 222, 224 T. Thomas, 91 Allan V. Mawson, 11, 84, 88 Allen T. Allen, 58 V, Dundas, 54 y. Edmundson, 268, 273, 290, 293 V. Harris, 225 V. Keeves, 16 V. Kemble, 383, 386 T. Miller, 364 V. Sea Life Assurance Company, 69 T. Walker, 142, 146, 414 Alsager v. Close, 394 V. Currie, 357 Alsager T. St. Katherine's Dock Co., 374 Alston V. Andrew, 55 Alves V. Hodgson, 387 Ambrose v. Hopwood, 207 Amner v. Clarke, 379, 387 Amory T. Merryweather, 137, 306 Amos V. Smith, 341 Ancher v. Bank of England, 152 Ancona v. Marks, 2, 32, 392 Anderson v. Cleveland, 191 V. Heath,' 185 V. Hick, 185 V. Sanderson, 342 v. Weston, 74, 446 Andrews v. Ellison, 43 T. Franklin, 92 Ankerstein v. Clarke, 409 Ansell V. Baker, 192, B27, 229 Anson t. Bailey, 211, 293 Aatoine v. Morshead, 133 Appleby v. Biddulph, 92 Applegarth v. CoUey, 134 Appleton y. Donaldson, 169 y. Sweetapple, 201, 202 Aranguren y. Scholfield, 364 Archer y. Bamford, 128 y. Hale, 240 Arden y. Sharpe, 46 V. Watkins, 450 Armani y. Castrique, 254, 388, 419 Armfield y. AUport, 87, 88 V. Armport, 181 Armistead v. Philpot, 9 Armstrong y. Christiani, 267, 268 Arnold v. Bainbridge, 354 Arnonld y. Reyonlt, 64 Arthur v. Beales, 415 Arundel Bank y. Goble, 241 Ashbee y. Pidduck, 238 Ashby V. Ashby, 57 y. James, 341 Ashley y. Killick, 138, 455 Ashpitle y. Bryan, 193 Ashton T. Frestun, 231, 232 Astley y. Johnson, 45, 124 xxxvni TABLE OF CASES CITED, Atkins, Ex parte, 444 T. Owen, 218 V. Tredgold, 339, 343 Atkinson v. Bayntun, 241 v.^Brindall, 452 V. Davies, 415 V. Denby, 115, 129 T. Elliott, 356 V. Hawdon, 314 Attcnboroughv. Maokenzie-, 166, 16^, 217 Attorney-General v.'Stephens, ll9 T. Valabreque, 408 Atward t. Crowdie, 122, 162, 163 Atwood V. Griffin, 79, 314 f. Mannings, 32, 33, 35 Aubert V. Walsh, 23, 24, 222 Auriol T. Thomas, 303 Austin V. Bunyard, 17, 75, 112 Awde T. Dixon, 79, 320 Ayliff V. Scrimshire, 350 Ayliffe v. Archdale, 57 Ayrey t. Fearnsides, 90, 91 Ayton V. Bolt, 338 B. Backhouse t. Harrison, 159 Bacon T. Searles, 167, 214 Badnell v. Samuel, 242 Baidwell v. Lydall, 221 Baildon T. Walton, 346 Bailey v. Bidwell, 116, 117, 118 V. Hodenham, 19, 196 T. Porter, 207, 268 Bailie v. Grant, 446 Baillie v. Moore, 371 Baker T. Birch, 279, 287, 293 T. Charlton, 48 v. Sterne, 388 V. Townshend, 133 V.Walker, 122, 123 V. White, 132 Balbl V. Batley, 395 Baldwin, Ex parte, 444 V. Richardson, 290, 410 Balfour v. Ernest, 70 V. Sea Fire and Life Insurance Company, 123 Ball V. Gordon, 407 Ballard T. Randall, 24 Balmanno v. Thompson, 418 Bamfield v. Tupper, 341 Banbury v. Lisset, 93, 187 Bancks v. Camp, 411 . Bancroft v. Hall, 272, 273 Bank of Bengal v. McCleod, 32 Bank of England v Anderson, 67, 68 T. Pagan, 150 T. Newman, 155 Bank of Ireland v. Archer, 182 T. Beresford, 125, 237, 239, 442 Banting v. Jadis, 395 Barber Ex parte, 446 T. Backhouse, 46, 126 V. Gingell, 33 T. Lemon, 415 i V. Richards, 146, 159 Barclay, Ex parte, 229, 373, 432 V. Bailey, 205 V. Walmsley, 301 Barfoot v. Goodhall, 50 Baring v. Clark, 258 Barker v. Sterne, 84, 388 V. Talest, 56 Barksdale v. Morgan, 198 Barkworth, Ex parte, 450 Barlow v. Bishop, 62, 63 V. Broadhurst, 90, 100 Barnes v. Hedley, 307 V. Worlich, 301 Barnett v. Brandon, 2, 159, 169 T. Skinner, 7 Barough v. White, 164, 297, 421 Barratt, Ex parte, 444 Barrington, In re, 157, 433 Bartholomew t. Henley, 4 Bartlett V. Benson, 149, 151, 161, 264 V. Emery, 59 V. Smith, 387 V. Wells, 60 Bartley v. Hodges, 385 Barton v. Gainer, 121 Bartram V. Caddy, 109, 164, 165, 217, 361 Basan v. Arnold, 415 Baskerville v. Brown, 352, 353, 354 Bass V. Clive, 193, 194, 407 Bassett v. Dodgin, 115, 434 Bastable v. Pool, 40 Batard v. Hawes, 247 Batchelor v. Lawrence, 9, 246 Bateman v. Joseph, 1 77, 290 V. Finder, 342 Bathv. Taylor, 312 Batley v. Calterall, 418 Batson v. King, 246 Battley v. Lewis, 49 Batty V. Marriott, 135 Baxter v. Lord Portsmouth, 60 Bayard v. Shunk, 154 Bayle, Ex parte, 357 Bayley on Bills, 266 Bayley v. Ashton, 346 V. Homan, 226 Baylis v. Dineley, 57 Bayly v. Schofield, 451 Baylye t. Hughes, 406 Baynes v. Fry, 303 Beachman v. Smith, 7", 8, 42 Bealy v. Greenslade, 341 Beard v. Webb, 62 Beardsley v. Baldwin, 90 Beanohamp T. Cash, 269 T. Parry, 421 TABLE OF CASES CITED. XXXIX Beaufoy, Ex parte, 433, 437 Beaumont V. Greathead, 221, 226, 402 V. Reeve, 131 Beavan v. McDonnell, 61 Beck V. Beverley, 455 V. Robley, 109, 166 Beckwith v. Corral, 361 Bedford v. Brutton, 43 V. Deakin, 48, 192, 229, 244,371 Beech v. Jones, 393 Beeching v. Gower, 20, 196, 207 V. Westbrook, 28 Beeley t. Wingfield, 133 Beeman r. Duck, 193, 194 Belcher v. Bellamy, 448 V. Campbell, 448, 449 Bell, Ex parte, 433, 447 V. Banks, 228, 244 V. Buckley, 218, 224 V. Coleman, 309 V. Frankis, 294 V. Gardiner, 315 T. Gunn, 442 V. Lord Ingestre, 146, 414 Bellamy v. Majoribanks, 21, 22 Bellasis t. Hester, 177 Bellingham v. Frere, 234 Belshaw v. Bush, 215, 226, 227, 229, 369 Benham v. Lord Mornington, 390 Bennett v, Farnell, 78, 79 Bennison v. Thelwell, 416 Benson v. White, 412 Bentham v. Lord Chesterfield, 26 Bentinck v, Connop, 134 V. Dorrien, 186, 189, 251 Bentley v. Northouse, 6, 424 Bentzing v. Scott, 427 Berrington v. Oollls, 308 Berry v. Alderman, 117 Besant v. Cross, 96, 187 Best V. Barker, 455 Belts v. Kimpton, 64 Bevan t. Gething, 346 y. Hill, 363, 364 T, Nunn, 451, 452 Beveridge v. Burgis, 290 Bevin v. Chapman, 333 Bickerdike v, Bollman, 286 Bickerton v. Burrell, 37 Biggs V. Lawrence, 132 Bignold, Ex parte, 14, 16, 210, 285 T. Waterhouse, 283, 291 Bilbie v. Lumley, 292 Billing V. Devaux, 186 Bingham v. Hanley, 117, 422 Bingley v, Maddison, 446 Binaington v. Wallis, 131 Birch V. Jervis, 138 V. Tebbutt, 220 Bird, Ex parte, 433 V. Gammon, 338 Bire v. Moreau, 388 Birkett, Ex parte, 431 Bishop V. Chambre, 316 v. Church, 52 V. Crawshay, 451 V. Hayward, 150 V. Rowe, 229, 372, 373, 403 T. Shillito, 372 V. Young, 82, 406 of Winchester v. Fournier, 173 Bittleston v. Timmis, 357, 358 Black V. Peel, 191 Blackburn, Ex parte, 155, 433 Blackhan v. Doren, 288 Blackie v. Pidding, 364 Blades v. Free, 38 Blake v. Beaumont, 207 V. White, 240 Biakesley v. Smallwood, 353 Bland v. Haselrig, 343 Blaney v. Hendricks, 298 Blakenhagen v. Blundell, 78, 92 Blaxton v. Pye, 135 Bleadon v. Charles, 151 Bleasard v. Hirst, 263, 292 Bleasby v. Crossley, 445 Block T. Bell, 84 V. Rell, 88 Blogg V, Kent, 399 Blount V. Barrow, 170, 171 Bloxham, Ex parte, 437, 442, 444 Bobson V. Bennett, 21 Boddington v. Schlencker, 20, 22 Bodenham v, Purchas, 219 Bodyer v. Archer, 341 Bolitho, Ex parte, 43, 48 Bolland v, Bygrave, 122 V. Nash, 356, 357 Bolton, Ex parte, 322, 444, 446 V. Dugdale, 90 V, Puller, 152, 449 Bonar v, Michell, 239 Bonbonas, Ex parte, 46 Bond V. Pittard, 40 V. Stockdale, 83 V. Warden, 15, 20, 374 Bonsor v. Cox, 239 Bontien's Case, 322 Booth V. Bank of England, 68 T, Coldman, 445 V, Grove, 423 T. Jacobs, 293, 294 T. Payne, 399 T. Quin, 50 Bopart V. Hicks, 15 Borough V. Perkins, 249 Borradaile v. Lowe, 292 Bosanquet v. Anderson, 149, 426 V. Corser, 97 V. Dudman, 122 V. Foster, 97 T. Wray, 220 Boswell V, Smith, 24 Bottomley v. Fisher, 69, 7 1 xl TABLE OF OASES CITED. Bottomley v. Nuttall, 369 Boucher v. Lawson, 387 Boulager v. Talleyrand, 254 Boultbee t. Stubbs, 245, 291 Boulton T. Coghlan, 140 V. Welch, 266 Bouts v. Ellis, 170 Bowerbank r. MonteirOj 95, 187 Bowmaker v. Moore, 240 Bowman v. Horsey, 339 T. Nichol, 312 Bowness v. Padmore, In re, 437 Bowyer v. Bampton, 135 Boyd T. Emmerson, 21, 165, 326 Boydell v. Champneys, 454 V. Drummond, 51 V. Harkness, 206, 207 Bradburne t. "Whitbread, 108 Bradbury v. Emans, 410, 418 Bradley t. Bardsley, 108, 113, 316 V. James, 346 Bradshaw v. Saddington, 395 Braithwaite v. Coleman, 352 V. Gardiner, 193, 451 Bramah v. Roberts, 418 Brandon v. Burnett, 2, 159, 169 T. Nesbitt, 65 T. Scott, 45 Brandram v. Wharton, 345 Bray v. Hadwen, 274, 276 y. Munson, 242 Bree v. Holbeck, 332 Brett T. Levett, 285, 291, 445 Brewin v. Short, 448 Brickwood v. Annis, 241 Bridges t. Berry, 285, 373 Bridget v. Mills; 435 Bridgman y. Sheehan, 315 Brigstock y. Smith, 338 Brill y. Crick, 95 Brind v. Hampshire, 146 Briscoe v. Hill, 352 Bristol (Earl of) y. Wilsraore, 372 Bristow y. Seequeville, 387 British Linen Company y. Caledonian Insurance Company, 324 Britten v! Hughes, 129 y. Webb, 150 Brix y. Braham, 123 Brocklebank v. Moore, 248 Bromage y. Lloyd, 56, 168 y. Vaughan, 269 Bromley v. Holland, 17,3, 176 Bronwell v. Bonney, 293. 294, 410 Brook V. Coleman, 394 V. Middleton, 303 Brooks V. Elkins, 11, 29 V. Mitchell, 164, 203 y. Stuart, 232 Brough V. Parkin?, 270 Broughlon y. Manchester Waterworks Company, 66, 138 Brown, Ex parte, 444 Brown v. Dayis, 162 V. Gracey, 390 y. Hancock, 347 y. Harraden, 6, 200 y. Joddtell, 61 y. Kempton, 452 y. Kewley, 372, 373 y. MafFey, 286, 288 V. M'Dermott, 196 y Messiter, 364 V. Philpot, 117 y. Saul, 10 y. Selwyn, 55 y. Turner, 137 y. Wilkinson, 238 Browne y. Carr, 242 V. De Winton, 6, 87 y. Howard, 332 V. Kidger, 43, 45 y. Lee, 247 y. Murray, 116 y. Rivers, 214 V. Ward, 169 Browning y. Einnear, 290 y. Reane, 61 Bruce y. Bruce, 157, 324 y. Hurly, 448 Brutt y. Picard, 314 Bryant y. Christie, 129 Brymer, Ex parte, 444 Bryson v. Wylie, 448 Buchanan, Ex parte, 449 y. Pindlay, 357 y. Rucker, 387 Buckland y. Newsame, 445 Buckler y. Angel, 411 v. Buttivant, 121, 437 Buckley, Ex parte 7, 44, 48 y. Barber, 52 T. Campbell, 409 y. Guilbank, 304 Buckmaster y. Russell, 338 Buckworth y. Leyy, 395 y. Simpson, 108, 112 Bulbeck y. Jones, 8 BuUer v. Cripps, 6, 379 y. Sharpe, 45 Bullock y. Dodds, 3, 65 y. Richard, 404 Bullpin y. Clarke, 62- Bulmer, Ex parte 432 Bult V. Morrell, 37 Bulteel V. Jarrold, 240 Bunn y. Martham, 170 Bunney v. Poyntz, 373 Burbridge y. Manners, 55, 166, 216, 217, 223, 276 Bur'chfield y. Moore, 311, 315, 323 Burden v. Benton, 125 Burgess, In re 226, 445 y. Merrill, 59 Burgh y. Legge, 210, 264,285, 293, 409 Burleigh v. Stott, 343 TABLE OF CASES CITHD. Xli Burke's case, 245 Burke v. Jones, 339 Burkett v. Blanchard, 399 Burmester V. Barron, 270 T. Hogarth, 142, 143, 424 Burn, Ex parte, 444 T. Boulton, 340 Burnard v. Haggis, 60 Burnell v Minote, 8 Butrough V. Moss, 64, 163, 353 Burrows v. Jemimo, 384 Burt T. Palmer, 342 Bury V. Blogg, 428 Bush V. Kinnear, 207 V. Martin, 347 Butler V. Malisay, 409 V. Mountgarret, 75 Butts. V. Swann, 100 Buxton T. Jones, 207, 208 Byrom v. Thompson, 314 C. Callander r. Howard, 218 Callow V. Lawrence, 109, 165, 215 Calvert v. Baker, 315 V. Gordon, 243 Calye's case, 3 Cameron v. Smith, 296, 298, 445 Camidge t. AUenby, 154, 155, 156, 157, 196, 204, 209, 373 Campbell v. French, 76, 201 V. Webster, 211, 254, 294 Cannan v. Bryce, 137 Cannam v. Parmer, 60, 62, 420 T. Wood, 452 Capp V. Lancaster, 332 Carew, In re, 122, 283 Carlon v. Ireland, 21, 159, 161 V. Kenealy, 7, 201 Carlos v. Fancourt, 90, 93 Carr v. Burdiss, 452 V. Bastabrook, 218 v. Shand, 6 V. Stephens, 95, 359 Carrol v. Blencow, 63 Carruthers v. West, 162 Carstairs, Ex parte, 245 V. Bates, 449 V. Eolleston, 237 V. Stein, 303 Carter v. Flower, 286, 287, 409, 410 T. Ring, 332 T. Wormald, 368 Cartwright v. Cook, 226, 368 V. Williams, ;65, 191 Carrick v. Vickery, 52, 145, 193 Casborne v. Button, 11, 28 Cash T. Taylor, 33 Castleman v. Ray, 15 Castrique v. Battigieg, 148 V. Bernabo, 277 Caswell V. Coare, 396 Cathay v. PenncU, 49 Catherwood v. Chabaud, 56 Catling T. Skoulding, 339 Catterall t. Hindic, 371 Catton r. Simpson, 312 Caunce v. Rigby, 395 Gaunt V. Thompson, 264, 265, 268, 289, 428 Oawley v. Turnell, 338 Cecil V. Plaistow, 129, 238 Chadwick v. Allen, 6, 78 Chalie t. Belshaw, 184 Chalmers t. Lanion, 162 Chamberlain T. Porter, 108 Chamberlyu v. Delarive, 371 Chambers v. Jones, 71 V. Miller, 224 V. Smith, 455 Champion v. Terry, 364 Chandlery. Parkers, 59 V. Vilett, 335 Channell v. Ditchburn, 343 Chapcott V. Carlewis, 290 Chaplin v Levy, 423 Chapman v. Black, 140, 306 V. Cotterell, 5, 146, 189, 388 V. Keane, 278, 279 Chappell, Ex parte, 282 V. Cooper, 57 Chappie V. Durston, 329, 347 Chard v. Pox, 265 Charles v. Marsden, 125, 162 Ohailey v. Grundy, 364 Chaters v. Bell, 149, 250, 426 Chaworth v. Beech, 4 Cheap V. Harley, 376 Check y. Roper, 177 Cheetham v, Butler, 104 V. Ward. 54, 55, 232 Chesmer v. Noyes, 254 Chesterfield v. Jansen, 305 Chievly v. Bond; 339 Child V. Monins, 57 Childers v. Boulnois, 28 Chilton V. Carrington, 403 Cholmley v. Darley, 94, 122 Christie v. Fonsick, 332 V. Peart, 408, 411 Church T. Imperial Gas Company, 66 Clack V. Sainsbury, 307 Clanricarde, Ex parte, 437 Claridge v. Dalton, 236, 237, 289 Clark V. Alexander, 341, 342 V. Clement, 229 T. Hooper, 345 Clarke, In re, 44, 48 V. Cock, 178, 184 V. Devlin, 245, 246 V. Dixon, 128 V. Fell, 357 V. Holmes, 116 V. Hougham, 332 xlii TABLE or CASES CITED, Clarke v. Laurie, 403 V. Lazarus, 126 V. Martin, 6, 424 V. Percival, 91 T. Pigott, 145, 147 T. Powell, 137 V. Quince, 364 T. Sharpe, 270 V. Wilson, 238 Claxton V. Swift, 228, 242 Clay V. Crowe, 364 T. Turley, 398 Clayton v. Gosling, 83, 92, 332, 433 V. Jennings, 135 T. Kynaston, 55 Clayton's case, 219 Cleave v. Jones, 346 Clegg V. Levy, 387 Clements t. Langley, 435 Clerk V. Blackstock, 7, 44, 314 Clifford T. Parker, 315 Clode V. Baylcy, 25, 276, 283 Close T. Phipps, 115 Cloves V. Williams, 406 Clngas V. Penaluna, 387 Clun's case, 406 Cochrane v. Green, 350, 358 Cock V. Coxwell, 315 Cockell V. Gray, 198 Cockerill v. Sparke, 338 Cocks, Ex parte, 296 v; Barradale, 149 V. Masterman, 326 V. Nash, 232, 240 Cockshottv. Bennett, 128 Cole V. Blake, 222, 399 v. Gower, 133 Colehan v. Cooke, 76, 92 Coleman v. Bredman, 392 V. Sayer, 198, 201 Coles V. Gum, 396 V. Sybsye, 334 Colkett V. Freeman, 445 CoUen V. Wright, 38 Collenridge v. Farquharson, 122, 163 CoUinge v. Heywood, 333 Collins V. Benning, 332 V. Butler, 177, 210 V. Collins, 351 V. Jones, 357 V. Martin, 124, 152, 159 V. Prosser, 247 Collinson's Case, 318 Collinson v. Margesson, 338 Collier v. Willcock, 341 Collis V. Emett, 79, 84 Collott V. Haigh, 237 Colombier V. Slim, 168 Combe's case, 31, 36 Combe v. Woolf, 240 Conier & Holland's case, 225 Connop V. Meakes, 307 Connor v. Martin, 63 Conro V. Port Henry Iron Company, 37 Conway v. Nail, 432 Cook v. Clayworth, 61 V. Lister, 215 V. Lonp, 123 Cooke V. Colehan, 92 V. French, 267 V. Wright, 123, 227 Coombes v Dibble, 134 Coombe v. Miles, 305 Coombs V. Ingram, 83, 122 Cooper V. Amos, 399 V. Machin, 445 V. Meyerj 194 V. Morecroft, 416 V. Parker, 226 V. Pepys, 443 V. Shepherd, 394 V. Turner, 348 V. Earl of Waldegrave, 386 V. Willomatt, 394 Copis V. Middleton, 246 Coppin V. Middleton, 63 Coppock V. Bower, 110, 133 Coore V. Callaway, 35 Cordery v. Colville, 293, 409 Corlett V. Jones, 276 Corner v. Shew, 57 Comes V. Taylor, 222, 400 Corney v. Mendez da Costa, 287 Cornfootv. Powke, 120 Cornforth v. Smithard, 338 Gornill v. Hudson, 336 Cory V. Gerrish, 23 V. Scott, 286, 293, 409 Cotes V. Davis, 64 V. Harris, 339 Cottam V. Partridge, 330 Cotton V. Godwin, 223 V. HoTsemanden, 297 Cougan V. Banks, 386 Court V. Partridge, 56 Cowell V. Edwards, 247 V. Watts, 56 Cowie V. Halsall, 311 V. Harris, 74, 447 V. Stirling, 5, 77, 91, 93 Cowper T. Green, 233 V. Smith, 245 Cowley V. Dunlop, 121, 436, 444 Cox V. Coleman, 184 V. Hickman, 45 V. Read, 454 V. Troy, 1 46 Coxon V. Lyon, 75 Cramlington v. Evans, 82, 143, 152 Crampton v. Walker, 351 Cranch v. Kirkman, 339 V. White, 60, 394 Crank v. Frith, 422 Craven v. Edmondson, 355 Crawfoot v. Gurney, 100 Crawford v. Stirling, 351 TABLE OP CASES CITED. xliii Craythorne v. Swinburne, 238, 247 Cresswell v. Crisp, 406 Crew T. Pettet, 37, 71 Oricklow v. Parry, 148, 426 Cripps V. Davis, 164, 345 V. Hartnall, 246, 369, 416 Crisp T. Griffiths, 369, 416 Crofts V. Beale, 123, 414 Cromwell v. Hynson, 252, 270 Crook V. Jadis, 159 Crookshanks v. Rose, 139, 140, 220 Cross, In re, 130 V. Cheshire, 44 T. Morgan, 395 T. Smith, 273, 281, 282 Crossley, Ex parte, 444 V. Clarke, 395 V. Ham, 161 Crotty V. Hodges, 315 Crowe V. Clay, 363, 372 > Croxon v. Worthen, 211 Crutchley v. Clarence, 79, 160 V. Mann, 79, 388 CutFv. Browne, 127 CuUen V. Thompson, 38 CnlTerhousf v. Alexander, 404 Cumber v. Ware, 226 Camming T. Bailey, 3 V. Baily, 355, 445, 452 V. French, 292 T. Shand, 19, 2l'6 Candy t. Marriott, 110, 291, 374 Cunlifie v. Maltass, 396 V. Whitehead, 144 Curlewis v. Corfield, 294 v. Lord Mornington, 334 Curtis V. Richards, 29 V. Rush, 370 Catbbert v. Haley, 306 D. Dabbs v. Humphries, 392 Da Costa t. Jones, 131 Dacy V, Clinch, 334 Dagnall t. Wigley, 304 Daintree v. Hutchinson, 134 Dalrymple T. Fraser, 7 Daniels v. Ryle, 20 Darbyshire v. Parker, 201, 271, 273 Darnell v. Williams, 126 Darey v. Prendergrass, 240 David V. Preece, 227 Davidson v. Cooper, 190, 310 Davies v. Dodd, 149, 366 T. Edwards, 344 V. Humphreys, 247 v. Lowndes, 74 T. Stainbank, 237, 238 Davis V. Barker, 423 V. Clarke, 84, 180 V. Dodd, 364, 366 T. Gyde, 370 Davis V. Hardacre, 305 V. Holding, 138 V. Jones, 74, 96 V. I^owndes, 446 V. Mason, 132 V. Smith, 296 V. Wilkinson, 90 Davison, Ex parte, 433 V. Franklin, 140 T. March, 395 V. Robertson, 376 Dawe V. Holdswortb, 220 Dawkes v. Lord de Loraine, 93 Dawson v. M'Donald, 111 V. Morgan, 393, 400 V. Prince, 64 Day V. Padrone, 63 T. Stuart, 138 Deftcon v. Stodhart, 216, 260, 417 Deakin v. Pennial, 108, 113 Dean v. Newhall, 232 De Begnis v. Armistead, 139 De Belloix v. Lord Waterpark, 222 De Berdt v. Atkinson, 210 De Bergareche v. Pillion, 208 De Bernales v. Puller, 180 Deering v. Earl of Winchelsea, 247 Deey, Ex parte, 444 Deeze, Ex parte, 356 Dehers v. Harriot, 84, 88, 201, 376 De la Chaumette y. Bank of England, 6, 39, 115, 122, 385, 390 De la Courtier v. Bellamy, 75 Delatorre v. Barclay, 191 De la Vegji v. Tianna, 389 Delauney v. Michell, 116 De Mantort v. Saunders, 49 Dendy v. Powell, 352 Denne v. Knott, 455 Dennis v. Morrice, 285, 291, 292 Dennistoun v. Stewart, 269 Dent V. Dunii, 24, 298 Denters v. Townshend, 168 Derry v. Duchess of Mazarine, 63 Desbrowe v. Weatherby, 311, 316 De Tastet, Ex parte, 443 V. Baring, 403, 443 Dewar v. Span, 306 Dewdney, Ex parte, 329, 432 Dickenson v. Dickenson, 74 T. Teague, 88, 334, 347 T. Valpy, 45, 50 Dickinson, Ex parte, 444 V. Hatfield, 338, 402 Dickson, Ex parte, 370 V. Cass, 355 V. Chambers, 104 V. Evans, 354 V. Thompson, 336 Dillon V. Rimmer, 229, 373 Dingwall v. Dunster, 191 Diploek V. Hammond, 100 Ditchburn v. Goldsmith, 132 xliv TABLE OF CASES CITED. Dixon T. Clark, 223 V. Elliott, 291, 293 V. Holroyd, Sli y. Johnson, 2 90 T. Nuttall, 11' le, 89, 92, 198, 201, 209, 331 Dobie V. Larkin, 399 Dobree v. Eastwood, 270, 271 Dobson T. Espie, 190, 225 Doe d. Durore v. Jones, 336 d. Vine v. Figging, 392 V. Bonlcot, 430 T. Cattermore, 316 T. King, 308 V. Palmer, 316 T. Somerton, 294 T. Whittingham, 108, 113 Dod T. Edwards, 65, 167, 217, 231 Dodge V. Pringle, 313, 314 Doman v. Dibden, 296 Don V. Lipman, 386, 389 Donaldson v. Thompson, 411, 413 Done V. Whalley, 248 Donovan v. Duff, 430 Dorchester t. Webb, 54, 55 Doty T. Smith, 7 Douglas T. Holme, 29 Douthat, Ex parte, 445 Dover v. Maestaer, 110 Dowbiggin v. Bonrne, 237 V. Harrison, 56 Dowling V. Ford, 345 Down V. Hailing, 76, 163, 365 Downes v. Garbut, 308 V. Eichardson, 313 Downman, Ex parte, 433 Drage v. Ibberson, 133 V. Netter, 232 Drain v. Harvey, 403 Drake v. Mitchell, 370 Draper v. Glossop, 329 Drayson v. Dale, 60, 193, 451 Druty V. MacaUly, 91 T. Smith, 9, 170 Du Belloix v. Lord "Waterpark, 298 Duck V. Braddyll, 112 DufourT.'Oxenden, 183, 184 Duffield V. Creed, 221, 348 V. Elwes, 170, 171 Dumas, Ex parte, 449 Duncan v. Lowndes, 48 V. Scott, 115 Dunn V. O'Keefe, 264 Dupays V. Shepherd, 180 E. Eagle Bank of Newhaven v. Smith, 157 Bales V. Dicker, 424 Eames v. Smith, 113 Earle, Ex parte, 439 Easley v. Crockfojd, 361 East V. Smith, 264, 265, 279 Eastern Union Railway Co. T. Symonds, 426 Bast India Company t. Paul, 329 T. Tritton, 148, 214 East liiondon Waterworks Co. v. Bailey, 66 Easton r. Prachett, 120, 414 Eastwood V. Bain, 71, 180 T. Brown, 454 v. Kenyon, 123 T. Saville, 346 Easnm v. Cato, 356 Eaton V. Bell, 71 Eddison v. Pigram, 412 Edgar r. Enapp, 9 Edge T. Bnmford, 366 V. Frost, 396 T. Bumford, 150 Edgecombe v. Bodd, 132, 226 Edie V. East India Co., 144, 152, 153 Edis V. Bury, 88 Edmeades v. Newman, 356 Edmonds v. Cates, 267 Edmunds v. Downes, 338 V. Groves, 116, 135, 422 Edwards, Ex parte, 435, 449 V. Bangh, 227 V. Cooper, 3 V. Dick, 88, 135, 283, 395 V. Grace, 56 V. Jones, 83, 96 T. Same, 69, 70 Egan V. Threlfall, 158 Egg T. Barnett, 23, 222 Elford V. Teed, 204 Elgar, Ex parte, 433 Elliot's case, 76, 80 Elliot V. Ince, 61 Elliott V. Cowper, 84 Ellis V. Mason, 11 T. Wild, 15^ Ellison y. Coilingridge, 77 V. Dezell, 243 Elsam V. Denny, 215 Emanuel v. Randall, 418 Emblin v. Dartnell, 208 Emery V. Day, 331, 342 Emly, Ex parte, 43 V. Lye, 43, 155 Emmott V. Tottenham, 2, 391 English V. Darley, 229, 241, 242, 243, 246 Ereskine v. Murray, 84 Esdaile v. La Nanze, 32, 173, 323 V. M'Lean, 396, 408 V. Sowerby, 196, 271, 291 Evans v. Bremridge, 403 v. Cramlington. 143, 152 V. Drummond, 48, 51, 192, 371 v. Jones, 133 T. Kymer, 151, 394 v. Lewis, 409 V. Phillpots, 29 V. Powis, 428 TABLE OP CASES CITED. xlv Erans v. Frosser, 352 V. Themridge, 23* V. Underwood, 92 V. Whyle, 154 T. Williams, 138, 243, 455 Ererard v. Watson, 268 Everett t. Collins, 24 V. Robertson, 338 Ewer V. Lady Clifton, 370 V. Jones, 329 Exeter Bank v. Gordon, 257 Exon V. RusselJ, 85, 95, 209 Byre v. Everest, 239 V. M'Dowell, 120 V. Waller, 26, 398 Eyton V. Littledale, 352 Faikney v. Reynous, 136 Fair v. M'lvor, 355 Fairclough v. Pavia, 149, 162 Fairlee v. Herring, 184 Faith y. Richmond, 44 Fallows V. Taylor, 132 Falmouth (Earl of) v. Roberts, 316 Fancourt v. Thorne, 12, 89, 95, 113 Fannin v. Anderson, 336 Fanshawe v. Peet, 95, 188 Farquhar v. Southey, 191, 192, 312 Farquharson v. Cave, 170 Farr v. Ward, 298 Farrar v. Deflinue, 51 Farrington t. Lee, 339 Faveno v. Bennett, 219, 221 Fawcett v. Fearne, 432 Fayle v. Bird', 84, 205 Fearn v. Filica, 32, 34, 116, 422 T. Lewis, 338 Febart v. Stevens, 398 Feise V. Randall, 129 Fenn v. Harrison, 154, 157 Fentou v. Levington, 383 Fentum v. Pococke, 8, 125,190, 237,442 Fereday v. Hordern, 40 Ferguson v. Douglas, 200 Ferrall v. Shaen, 301 Ferris v. Bond, 92 Pesenmayer v. Adcock, 28, 29, 424 Field V. Carr, 213, 220 V. Woods, 14, 15, 75, 107, 113,315 Fielder v. Marshall, 87, 88 Fieldhouse v. Croft, 9, 172 Fife V. Round, 85 Finleyson v. Mackenzie, 413 Firbank v. Bell, 100 Firth V. Thrush, 276, 290, 410 Fisher v. Beasley, 301 V. Leslie, 11, 28, 29 T. Mowbray, 57 Fitch V. Jones, 95, 115, 134, 136 V. Sutton, 190, 221, 226 Fitzgerald v. Williams, 288 Fleming v. Brooke, 9 V. Burge, 28 v. St. John, 404 Fletcher V. Braddyl, 271 V. Dyte, 8 V. Proggatt, 292 Y. Manning, 23, 447 V. Sandys, 202 Flight V. Browne, 364 V. Gray, 97, 230 T. Maclean, 6 V. Reed, 123, 140, 309 Flint, Ex parte, 357 Flood V. Patterson, 336 Florence v. Jennings, 295 Floyer v. Edwards, 300 FoUett v. Hoppe, 432 V. Moore, 89, 308 Forbes v. Marshall, 44 v. Smith, 336 Ford V. Beech, 229, 230 V. Dornford, 354 Fordham v. Wallis, 339, 342 Fogg V. Sawyer, 164 Forman v. Drew, 454 V. Wright, 414 Forster v. Wilson, 355 Foster v. Dawber, 190 T. Green, 158, 324 V. Jolly, 96 V. Pearson, 35, 49, 122, 159 Fowler v. Hendon, 275 Fox V. Frith, 42, 69, 83 Frampton v. Goulson, 209 Francis v. Mott, 144 v. Nash, 9, 172 V. Rucker, 443 Franklin v. Beesley, 454 Franks, Ex parte, 63 Fraser v. Jordan, 237 V. Newton, 412 T. Welsh, 415 Freakly V. Fox, 54, 217 Free v. Hawkins, 96, 148, 291 Freeman v. Lomas, 350 Frith V. Forbes, 178 Fry V. Hill, 175 Fryer v. Brown, 423 V. Gildridge, 54, 55 v. Koe, 331, 424 Fuller V. Smith, 157, 376 Furze v. Sharwood, 48, 264, 267 Fussell V. Daniel, 308 Pydell V. Clark, 155 Gadbury, In re, 64 Gale V. Capern, 345, 347, 348 V. Walsh, 249, 254, 270 Galway v. Mathew, 7, 47 xlvi TABLE OF OASES CITED. Gardner v. Baillie, 32 V. M'Mahon, 338 T.Walsh, 8, 311, 312,313 Garnet v. Clarke, 122 Garrard v. Cottrell, 393 T. Woolnep, 368 Garrett v. Jull, 8, 238 Gaters v. Madely, 64 Gatty, V. Field, 408 Gay V. Lander, 6, 87, 144 Geary v. Physic, T3 Geill T. Jeremy, 2T4, 2T5 George v. Snrrey, 74, ^3, 144, 423 T. Stanley, 136, 140 Geralopulo v. Wieler, 250, 255, 260, 262 Gibb T. Mather, 85, 206, 208, 311 Gibbon v. Coggon, 253, 254; 293 V. Scott, 187 Gibbs v. Fremont, 386, 390 V. Mather, 85 Gibson, In re, 443 V. Baghott, 342 T. Bell, 356 v. Bruce, 130 V. Dickie, 131 T. Hunter, 79 Gififord, Ex parte, 432 Gilbert T. Piatt, 413 V. Whitmarsh, 97 Giles V. Bourn, 74 V. Perkins, 449 Gill T. Cubitt, 158, 361 T. Lord Chesterfield, 2, 391 Gilmore v. Whitmarsh, 107 Gilpiu T. Enderby, 40, 305 Girardy v. Richardson, 131 Gladstone v. Hadwen, 372 Giaister v. Hewer, 446 Glasfurd v. Laing, 304, 306 Glendinning, Ex parte, 237, 245 Glengall v. Edwards, 404 ' Glennie v. Edmunds, 356 V. Imrie, 127 Glover, Ex parte, 435 Glynn v. Soares, 403 Goate T. Goate, 338 Godard v. Benjamin, 393 Goddard v. Cox, 220 T. Ingram, 343 v. White, 246 Godfrey v. Coulman, 379 V. TurnbuU, 51 Godwin v. Culley, 338 Goggerly v. Outhbert, 151; 393 Golding V. Grace, 400 Goldsmid, Ex parte, 444 T. Cazenove, 435 V. Hampton, 83, 136 Goldsmith t. Bland, 273 Gompertz v. Bartlett, 157, 380 Good v. Cheeseman, 226, 368 V. Harrison, 59 Goodall V. DoUey, 211, 263, 292 Goodall V. Polhlll, 261 T. Eay,#163, 164 Goodbody v. Poster, 25, 298 Goodburn v. Marley, 135 Goodered v. Armour, 423 Goodman T. Harvey, 118, 119, 120, 152, 158, 159, 161, 252, 264, 270 Goodtitle v. Milburn, 446 ' Goodwin v. Coates, 372 ^ V. Oremer, 393 Gordon v. Calvert, 243 v. Ellis, 46, 218 V. Sea Fire Society, 70 Gore V. Gibson, 60, 61 Gorgier v. Mieville, 152, 159 Gorham v. Thompson, 51 Goss V. Nelson, 92 Gough T. Davis, 220 Gould v. Coombs, 29 V. Johnson, 347 V. Eobson, 241 Gouldney, Ex parte, 46 Gonpy V. Harden, 36, 147, 176 Gowan v. Forster, 340 Graham v. Hope, 51 Grange v. Trukett, 456 Granger v. George, 332 Grant T. Da Costa, 82, 83 V. Hawkes, 47 v. Hunt, 184, 185 V. Mills, 374 V. Vaughan, 25, 80, 115, 143, 424 V. Welchman, 127 Graves v. Key, 109, 166, 223, 426 Gray v. Mendez, 336 V. Milner. 84, 88, 180 Green v. Allday, 16 V. Bucknell, 435 v. Croft, 222 V. Davies, 78, 112 V. Deakin, 46 V. Farmer, 350 V. Price, 132 V. Skipworth, 74 V. Steer, 146, 432 Greening, Ex parte; 150 Greenough v. M'Clelland, 238 Greenslade v. Dower, 45 Greenway, Ex parte, 366, 433 V. Hindley, 211, 253, 254 Gregory v. Fraser, 110 V. Hurrill, 336 V. Parker, 342 Grew V. Bevan, 128 Grey v. Cooper, 60 Griffin v. Goff, 201 Griffith v. Roxburgh, 411 Grigby v. Oakes, 10 Groom v. Mealey, 358 Grosvenor, Ex parte, 435 Grout V. Enthoven, 47, 412 Grove v. Neville, 59 Grugeon v. Smith, 267 TABLE OF CASES CITED. xlvii Grymes v. Blofield, 226 Guardians of Lichfield Union v. Greene, 154, 155, 218, 373 Gulliver v. Gulliver, 339 Gnnson v. Metz, 292 Guraey v. Evans, 37, 50 V. Womersley, 157, 324 Guy V. Harris, 1 1 Guyard v. Sutton, 64 Gwinnell v. Herbert, 142, 143, 413 Gwynne v. Burnell, 415 H. Haddock v. Cnry, 210, 293 Hagedorn v. Eeid, 271 Hague v. French, 74 Haigh V. Jackson, 434 V. North Bierly Union, 66 Halford v. Cameron Coal Company, 69, 70 Halifax v. Lyle, 193 Hall V. Coates, 397 V. Cole, 237 V. Dyson, 456 V. Featherstone, 117 T. Frankli)), 139 V. Fuller, 24, 323 V. Potter, 132 T. Smith, 7, 43 V. Wilcox, 8, 238 Halliday v. Ward, 345 Halstead V. Skelton, 206 Hamber v. Roberts, 422 > Hamelin v. Bruck, 312 Hamilton v. Bell, 448 v. Spottiswood, 77 V. Watson, 235 Hammeraley v. Knowlys, 220 Hammet v. Yea, 303 Hammond v. Dufrene, 288 Hamson v. Harrison, 447 Handock, v. 58 Hankey v. Cobb; 138 V. Jones, 447 V. Smith, 357 V. Trotman, 202 V. Wilson, 426 Hauley v. Morgan, 395 Hansard v. Bobinson, 222, 363, 364, 366 Hansom, Ex parte, 358 Harding v. Edgecumbe, 342 Hardman v. Bellhouse,.227 Hardy v. Woodrooffe, 85, 207, 208, 210 Hare v. Henty, 20, 202 Hargreaves v. Mitchell, 339 Harley v. Greenwood, 435 V. Thornton, 154 Harmer v. Steele, o4, 69, 217, 414 Harpham v. Child, 269 Harries, In re, 370 Harrington v. M'Morris, 408 Harris v. Benson, 253 V. Boston, 303 V. Packer, 207, 208 Y. Parker, 206 V. Shipway, 370 V. Swinburne, 398 T. Wall, 58 V. Woolford, 334 Harrison, Ex parte, 433 V. Clifton, 75 V. Oourtauld, 237, 245 T. Fitzhenry, 290 V. Hannel, 307 V. Jackson, 43 V. Richardson, 61 V. Rigby, 395 V. Ruscoe, 269, 270, 278, 279j 280 T. Turner, 352 Harrop v. Fisher, 150 Hart V. King, 366 V. Nash, 340 V. Prendergast, 338 Harthey v. O'Flaherty, 247 Hartley v. Case, 216, 265, 266 V. Mauton, 232 V. Rice, 132 V. Wharton, 59, 63, 64, 65 V. Wilkinson, 94 Harvey, Ex parte, 245 V. Archbold, 301, 306 V. Martin, 185 T. Towers, 115, 117,118 Hatch V. Trays, 82, 406 V. Searles, 182 HanssouUier t. Hartsink, 92 Hawkes v. Salter, 271, 274 Hawkey v. Borwick, 2u7, 208 Hawkins v. Billhead, 347 V. Cardy, 167 V. Pehfold, 451 v. Kutt, 270 V. Whitten, 355 Hawley v. Beverley, 130 Hawse v. Growe, 372 Hay V. Ayling, 136, 140 • V. Goldsmid, 32 Haydook v. Linch, 91, 93 Haydon v, Williams, 338, 348 Hayes v. Caulfield, 414 Hayling v. Milhall, 228, 241 Haynes v. Birks, 201, 216, 275 V. Foster, 35 Healey v. Story, 69 Heath, Ex parte, 286, 288, 432 V. Hanley, 330 V. Key, 238i 240 V. Percival, 52 v. Sansom, 50, 115, 116 Heathcote v. Crooksbanks, 226 Hebden v. Hartsink, 403 Hedgerv. Steavenson, 265, 267 Hedley v. Bainbridge, 45 xlviii TABLE OF CASES CITED- I Heiser v. Grout, 108 Hemings T. Robinson, 426 Hemmenway v. Stone, 7 Hemming t. Brook, 215 T. Trenery, 315 Hemp V. Garland, 331 Henderson v. Appleton, 197, 210 T. Australian Co., 66 V. Bise, 136 T. Stobart, 225, 227, 232, 240 Henman t. Dickinson, 316 Henniker v. Wipg, 122 ' Henry v. Bnrbidge, 411 HentoQ, Ex parte, 443 Heskcth v. Fawcitt, 223 Hetherington y. Kemp, 271 Hewet'v. Goodrick, 242 Hewitt v. Thompson, 271, 290 v. Price, 136, 138 Heyhoe v. Burge, 53 Heywood v.Watson, 123 Hicks V. Duke of Beaufort, 293, 410 Higginbotbam, Ex parte, 442 Higgins V. Senior, 37, 69 Higham v. Ridgway, 426 Highmore v. Primrose, 83, 341 Hill y. Halford, 91, 92 V. Heap, 176, 210, 285, 286 —v. Lewis, 80, 142 V. Manchester and Salford Water- works Company, 66 Hillard v. Lenard, 346 Hills V. Hills, 171 T. Mitsoh, 456 Hilton V. Fairclough, 275 T. Shepherd, 280, 29t) Hindley v. Lacy, 97 Hine v. Allely, 207, 208, 2^0, 276 Hinton v. Duff, 409, 411 Hipwellv. Knight, 198 Hirschfield t. Smith, 312, 386 Hitchcock T. Humfrey, 197, 284 T. Way, 135, 307 Hoar V. Da Costa, 202 Hoare v. Cazenove, 256, 257, 258 T. Dresser, 185 V. Graham, 96, 187 Hobbs T. Christmas, 252 Hodge V. Fillis, 85, 210 Hodges T. Steward, 406 Hodgkins v. Hancock, 416 Hodgkinson v. Wyatt, 308 Hodgson y. Murray, 1 64, 403 V. Shaw, 246 y. Temple, 132 Hodson V. Gunner, 400 Hoffman, Ex parte, 443 Hogg y. Skene, 47, 118, 413 y. Snaith, 32 Holbrow V. Wilkins, 284 Holcdmbe y. Lambkin, 395 Holden'^ case, 321 Holding, Ex parte, 445 Holdsworth v. Hunter, 189, 376, 377 Holiday y. Boas, 55 Holland y. Jourdine, 393 y. Russell, 38 Holliday y. Atkinson, 60, 120, 121 Hollier y. Eyre, 237, 238 Hollis y. Palmer, 337 Holman y. Johnson, 387 Holme y. Barry, 156 Holmer y. Viner, 129 Holmes y. Jaques, 72 y. Eerrison, 76, 331 y. Kidd, 163 y. Mackrell, 111, 341, 424 y. Sixsmitb, 110 y. Williamson, 9 y. Wilson, 394 Holroyd y. Whitehead, 109 Holt y. Miers, 96, 308 y. Ward, 58 Holtier y. Eyre, 8 Holj y. Lane, 65 Homan y. Thompson, 420 Hood y. Ashton, 403 Hoopef y. Steyens, 340 T. Williams, 6 Hopes y. Alder, 291 Hopley y. Dufresne, 210, ^91, 293, 410 Hopper y. Richmond, 296 Hordern y. Dalton, 361 Horford y. Wilson, 291, 293 Horn y. Ion, 456 Hornblower y. Proud, 3, 448 Horncastle y. Farran, 373 Home y. Redferne, U, 28 Horner y. Keppel, 401, 418 Horsfall y. Fauntleroy, 324 Hough's case, 323 Iloulditcb y. Canty, 267 Houriet v. Morris, 6 Housego V. Cowne, 268, 269, 272, 273, 282 Hoyil y. Browning, 51 Howard v. Baillie, 32 V. Hodges, 131 y. Oakes, 64 Howcutt y. Bonser, 338 Howden y. Haigh, 130 Howe y. Bowse, 196, 208 Howell y. Coleman, 396 Howie V. Baxter, 444 Hoyles y. Blore, 455 Hubbard y. Jackson, 166 Huber y. Steiner, 530, 389 Hubner y. Richardson, 140 Hudson y. Fossett, 295 y. Hudson, 56 Huffam y. Ellis, 207 Hughes y. Wynn, 339 HuUy. Wyborn, 336 Hulme y. Coles, 242 V. Muggleston, 357 y. Sanders, 406 TABLE OF CASES CITED. xHje Hulme T. Tenant, 62 Hulsev. Hulse, 121 Humbert v. Euding, 116 Hume V. Peploe, 216, 240, 276, 399 Humphreys v. Jones, 338 T. Earl of Waldegrave, 135 V. Willing, 138 Humphries v. Winslow 395 Hunloclie v. Blacklowe, 132 Hunt V. Braines, 406 V. Massey, 58, 59, 411 Hunter, Ex parte, 25 V. Agnevr, 57 V. Wilson, 124 Huntley v. Sanderson, 37, 285 Hustler, Ex parte, 433 Hutchinson v. Hargrave, 394 V. Heyworth, 100 Hutchison v. Bovvlcer, 268 Button V. Byre, 8, 232 T. Ward, 423 Hyde v. Johnson, 342 Y. Sliinner, 53 Hyne v. Dewdney, 11 I. Ibbett V. Lesver, 534 Iraeon, Ex parte, 89 Immeson, Ex parte 433 Imperial Gas Co. v. London Gas Co., 332 Ingham v. Primrose, 181, 190, 324 Ingledew t. Douglas, 59 Inglis V. Grant, 447 Y. Haigh, 330, 339 Ingram v. Poster, 177 Innes v. Munro, 97 T.'Stepbenson, 213 Irons V. Smallpiece, 170 Irving Y. Veitoh, 338, 340, 424 Isaac Y. Daniel, 239 Isbester, Ex parte, 156, 433 Israel Y. Benjamin, 1 13 Y. Israel, 11, 28 Jacaud v. French, 46 Jackson y. Collins, 293 Y. Duchaire, 238 Y. Fairbank, 345 Y. Hudson, 181, 187, 251, 256 Y. Pigott, 183, 411 Y. Warwick, 124 Y. Woolley, 344 Y. Yate, 395 Jacob Y. Hungate, 116 Jacobs V. Hart, 311, 314 Y. Tarleton, 420 Jacquet v. Jacquet, 339 Jacques y. Withy, 352 4 James y. Catherwood, 387 Y. Child, 220 Y. DaYid, 226 Y. Houlditch, 203, 204 Y. Isaacs, 215, 226 V. Williams, 369, 415 Jameson y. Swinton, 204, 275, 278, 280 Janson y. Thomas, 201 Jardine y. Payne, 110, 424 Jarvis y. Wilkins, 11 Jay Y. Warren, 242 Jeffery y. Walton, 74 Jeffreys y. Boosey, 383 Y. Evans, 139 Jeffries y. Austen, 124 JelfY. Oriel, 427 Jenkins v. Blizard, 51 V. Hutchinson, 180 Y. Morris, 43, 69 Jennings y. Newman, 57 V- Roberts, 278, 279 Y. Rundall, 59 Y. Robertson, 242 Jenny y. Erie, 93 Jenys y. Fawler, 193 Jeune v. Ward, 185 Jewell V. Parr, 125, 162, .215, 217 Jobson Y. Forster, 56 Jocelyn y. Hawkins, 198 V. Laserre, 84 Johnson, Ex parte, 282 V. Baun, 135 V. CoUings, 182 V. Duke of Marlborough, 316 Y. Gallagher, 62 V. Kennion, 167, 214 Y. Medlicotte, 61 Y. Pye, 59 Y. Smith, 330, 333 Y. Windle, 323 Johnstone, Ex parte, 196 Jolly Y. Young, 198 Jombart Y. Wollett, 449, 450 Jones, Ex parte, 303 Y. Broadhurst, 215, 216, 226 Y. Brooke, 393 Y. Corbett, 47, 413 V. Fort, 151 Y. Hibbert, 125, 442 v. Jones, 123, 127, 313, 422 V. Lane, 167, 168, 173 Y. Lewis, 62 v. Morgan, 426 V. Pepnercorn, 159 Y. Ryde, 157, 324 Y. Ryder, 111, 341, 424 V. Scott, 339, 340 Y. Simpson, 100 v. Smith, 119 Y. Thomas, 115 Y. Yates, 46 Joseph T. Orme, 444 Josselyn v. Lacier, 93 1 TABLE OF CASES CITED. Joy V. Campbell, 448 Julian V. Shobrooke^ 187 Jungbluth V. Way, 391 Jury T. Baker, 12, 91 K. Kay V. Duchess de Plenne, 63 v. Smith, 59 Keable v. Payne, 110 Kearney v. King, 386, 408 T. West Granada Mining Com- pany, 376 Kearns t. Durell, 97, 115 Kearslake v. Morgan, 227, 229, 369, 372 Kearsley v. Cole, 245 Keates v. Whieldon, 104 Keaton v. Lynch, 115 Keene v. Beard, 13, 18, 398 T. Keenei 296, 299 Keir t. Leman, 133 • Kell V. Nainby, 49 Kelly V. Solari, 224 V. Villebois, 412 Kemble t. Atkins, 137 V. Mills, 414 Kembrick v. Lomax, 229, 252, 373, 402 Kemp V. Balls, 215, 216, 226 V. Finden, 247 V. Miirry, 455 v. Watt, 369 , Kennard t. Knott, 239, 242 Kennerley t. Nash, 296, 313 Kennett t. Milbank, 338 Kensington v. Chantler, 452 Kent V. Lowen, 271, 421 ' Kernot v. Pittis, 138, 455, 456 Rerahaw v. Cox, 143, 314 Kessebower t. Tims, 424, 426 Key V. Flint, 357 Keymer t. Laurie, 19, 188 Kidd V. Walker, 297 Kidson v. Dilworth, 148, 403 Kilby V. Wilson, 372 Kilgottr V. Finlayson, 32, 52 Kilsby T. WilliamSj 21, 165, 326 Kine v. Beaumont, 271 iKing, iEx parte, 442, 444 In re, 60 T. Bickley, 265 T. BraddoQ, 308 T. Gillett, 225 V. Hoare, 8, 228 T. Milsom, 115 T. Phillips, 125 V. Taylor, 297 V. Thom, 56, 57 T. Walker, 335 Kingston v. Long, 91 Kinnersley y. Knott, 408 T. Somers, 39 Kirby v. Duke of Marlborough, 220 Kirk V. Almond, 395 Kirk T. BInrton, 44 T. Strickwood, 133 Kirkpatrick t. Tattersall, 451 Kitcbenman T. Skell, 57 Knight T. Cambers, 139 V. Clements, 315, 316 T. Criddle, 9, 172 V. Fitch, 139 V. Hunt, 128 T. Pocock, 397 Knill T. Stockdale, 407 V. Williams, 312 Knowles v. Burward, 401, 418 V. Mitchell, 341 Koch V. Shepherd, 336 Kufh V. Weston, 270 Lacey v. Forrester, 414 Lnckington v. Combes, 355 Lacy V. Kynaston, 232 V. Woolcot, 53 Lade v. Trill, 329 Lafitte v. Slatter, 196, 286, 288 Lafond v. Ruddock, 336 Laing T. Barclay, 86 T. Stone, 298 Lake t. Brutton, 242 Lamb v. Newcomb, 395 Lambert, Ex parte, 259, 261 V. Oakes, 148 V. Pack, 148, 426 Lamey v. Bishop, 427 Lamprell v. Billericay Union, 66 Lanauze v. Palmer, 271 Lane t. Chapman, 134 V. Cotton, 360 T. Horlock, 307, 308 T. Mullins, 423 T. Ridley, 417 V. Williams, 43, 52 Lang V. Smyth, 376 Langdale v. Parry, 242 V. Trimmer, 276 Langdon v. Hulls, 270, 271 V. Stokes, 2 25 V. Wilson, 28 Langston v. Covney, 187 Langton v. Haynes, 307, 208 v. Lazarus, 315 Lara v. Hacou, 96 Latraille v. Hoepfner, 394 Layeson, v. Lane, 46 Law V. Parnell, 72 Lawrence v. Clark, 423 V. Walmsley, 240 Laws V. Rand, 20 Lawson v. Lawson, 170 V. Sherwood, 277 V. Weston, 34 Lawton v. Elmore, 128 TABLE OF CASES CITED. Laxton v. Peat, 237 Lazarus v. Cowie, 109, 113, 162, 165, 215, 21T Leach t. Buchanan, 194 Leadbitter v. Farrow; 36, 37 Leaf T. Robson, 41 7 Lecaan v. Kirkman, 291 Le Gheminant v. Pearson, 387 Lechmere v. Fletcher, 122, 338 Lee, Ex parte, 442, 444, 445 V. Lester, 351 V. Levy, 242 T. Muggridge, 62 V. Rogers, 347 •V. Zagury, 34 Leeds Bank, Ex parte, 449 Banking Co., In re, 255, 276 V. Lancashire, 90, 93, 94 Leers, Ex parte, 443 ^ Leeson v. Holt, 51 T. Piggott, 210 Lefevre t. Lloyd, 36 Leftleyv. Bailey, 176 T. Mills, 216, 252, 275 Legge T. Thorpe, 253, 28S Leicester v. Rose, 129 Leight V. Baker, 397, 398 Leonard v. Baker, 455 V. Wilson, 145, 255 Leroux v. Browne, 390 Leslie t. Hastings, 84 Leveck v. Shafto, 49 Le Veux v. Berkeley, 336 Levy V. Baker, 61 V. Dolbell, 464 V. Home, 453 V. Webb, 396, 408 Lewin v. Edwards, 406 , Lewis V. Cosgrave, 128 V. Dalrymple, 400 V. Gompertz, 265, 267, 395 V. Lee, 62 V. Lyster, 226 V. Mason, 454 T. Nicholson, 38 T. Lady Parker, 164 V. Sapio, 423 Leykrieflf V. Ashford, 316 Lickbarrow v. Mason, 213 Lightbody v. Ontario Bank, 154 Lindo T. Unsworth, 277 Lindus v. Bradwell, 37, 180 T. Melrose, 69, 70 Linsell v. Bonsor, 338, 342 Lisle V. Liddle, 394 Lithgow V. Lyan, 296 Little V. Slackford, 77 Littlefield v. Shee, 62 Litton Y. Dalton, 453 Liverpool Association v. Fairhurst, 62 Borough Bank v. Walker, 57 Llewellyn v. Llewellyn, 227 V. Winckworth, 33 Lloyd, Ex parte, 434 V. Archbowl, 49 V. Ashby, 49 V. Howard, 146, 414 V. Lee, 62 V. Maund, 342 V. Oliver, 88 ' V. Sandilands, 23, 24 Load V. Green, 448 Lobb V. Stanley, 451 Lobbon, Ex parte, 435 Lockett's case, 319 Lockier v. Smith, 56 Lockwood V. Ewer, 169 Lockyer v. Jones, 10 Lomas v. Bradshaw, 43, 129 Lomax v. Landells, 408 Long T. Bailie, 364 T. Gale, 198 ^ V. Greville, 342 Longridfe v. D'Orville, 227 Lord V. Perrand, 223 V. Hall, 36 Loring, Ex parte, 374 Lovell V. Hill, 92 V. Martin, 214, 365 Low V. Burrows, 418 V. Copestake. 144 Lowe V. Peers, 132 V. Peskett, 230, 233 Lowes V. Mazzaredo, 307 Lowndes v. Collins, 296 Lowry v. Murrell, 154 Lucas v. Winton, 453, 455 Luce V. Irwin, 395 Lumley v. Hudson, 230 V. Musgrave, 230, 298, 373 v. Palmer, 183 Landie v. Robertson, 211, 291, 293, 410 Lynn v. Bruce, 225 Lyon V. Holt, 207, 239 Lysaght v. Bryant, 146 M. Macartney v. Graham, 366 Macgregor v. Rhodes, 148, 426 Machell v. Kinnear, 144 Macha v. Fraser, 395 Mackay v. Judkins, 270 Mackintosh v. Haydou, 208 Mackworth v. Marshall, 173 Maclae v. Sutherland, 69 Macleod v. Snee, 93 MacNeilage v. Holloway, 63, 446 M'Allister v. Haden, 135 M'Call V. Taylor, 83, 88 M'Clae V. Sutherland, 7, 8, 44 M'Donald v. Bell, 234 V. Bovington, 453 M'Donnell v. Murray, 367 M'Dowall V. Boyd, 314, 369 lii TABLE OF CASES CITED. M'Bowall V. Lyater, 14 M'Gae, Ex parte, 449 M'Gregor v. Rhodes, 214 M'Intosh V. Haydon, 209, 311, 332 M'Kinnell v. Robinson, 134, 137 M'Nair v. Fleming, 48 Macretli t. Simmons, 374 M'Taggart v. Ellice, 395 Haddock's case, 318 Maghee v. O'Neil, 346- Magor T. Hammond, 88 Magnus, Ex parte, 446 Mahoney v. Ashlin. 379 Maillard v. Duke of Argyle, 369 Main's case, 197 Mainwaring v. Newman, 7, 41, 87 Maldow T. Caldwell, 6 Mallan v. May, 132 Malpas T. Clements, 422, 446 Maltass v. Siddle, 210, 287 Maltby v. Murrells, 396, 397, 398 Mammott v. Matbew, 395 Manby v. Scott, 59 Manchester Warehonse Co. v. Bertie, 215 Manley v. Boycott, 8, 238 Mann v. Lent, 116, 127 V. Moors, 270 Manners, Ex parte, 433 Manwaring v. Harrison, 202 March t. Attorney- General, 308 V. Ward, 7, 44 Mardall v. Thellnsson, 353 Mare v. Charles, 37 Margetsou t. Aitkin, 243, 291 ^ Markham t. Gonaston, 310 Markle T.Hatfield,, 157 Marlar, Ex parte, 442 Marriage T. Skiggs, 398 Marryatts v. White, 220 Marsh v. Chambers, 354 V. Houlditch, 220 v. Martindale, 302, 306 V. Maxwell, 275, 280, 281, 293 T. Newall, 167 T. Pedder, 24, 370, 371 Marshall, Ex parte, 393 V. Broadhurst, 56 V. Poole, 296, 298 V. Rutton, 62 Marston v. Allen, 2, 146, 414 Martin v. Chauntry, 89 V. Morgan, 16 V. Pewtresa, 451 V. Reed, 169 Marzetti t. Williams, 18, 216 Mason v. Barflf, 185 V. Bradley, 315 V. Hunt, 182 T. Morgan, 63 V. Rumsey, 43, 44 Master v. Miller, 311, 316 Masters v. Barretto, 208 V. Ibberson, 139 Masterman v. Cowrie, 303 Mather, Ex parte, 432 T. Lord Maidstone, 115, 326 V. Marsland, 398 Mathews v. Bloxham, 143 Matthews t. Griffiths, 303 V. Haydon, 196 V. Phillips, 333 Maugham v. Hubbard, 110, 228 Mavor t. Pyne, 329 Mawman t. Gillett, 49 Maxwell v. Brain, 269 May T. Seyler, 418 Mayer v. Jadis, 149 Mayhew v. Crickett, 229, 238, 241, 242, 245, 247 Mayor v. Johnson, 365 Mayor of Ludlow v. Charlton, 66 Stafford v. Till, 66 Mead v. Braham, 434, 435, 444 T. Young, 77, 158, 320 Meggadow v. Holt, 409 Megginson t. Harper, 71, 78, 332, 345 Meggot V. Mills, 220 Melanotte t. Teasdale, 29 Mellersh v. Rippen, 260 Mellish T. Rawdon, 175, 176 T. Simeon, 402 Mendizabal v. Machado, 184, 137 Mercer v. Cheese, 369 T. Jones, 297 V. Southwell, 177 Merchants' Bank v. Birch, 282 Mertens v. Winnington, 261 Merton's case, 318 Messenger v. Southey, 266, 269 Metcalfe, Ex parte, 440 V. Richardson, 264, 410 Michael t. Myers, 229, 239 Middleton v. Barnet, 125 V. Lord Onslow, 238 Midford v. Findon, 418 Miers t. Brown, 265, 278 Miley v. Wallis, 418 Millar v. Heinrick, 387 Miller V. Atlee, 354 V. Biddle, 201 V. Hay, 408 V. Miller, 9, 170 v. Race, 9, 34 T. Thompson, 1, 89, 179 Mills V. Aldenbury Union, 246 T. Barber, 116 V. Fowkes, 219, 220, 340 T. Gibson, 293 v. Oddy, 127, 414, 420 T. Stafford, 10 Milne's case, 322 Milne v. Graham, 6 T. Prest, 182 Milnes v. Dawson, 120, 121 Minet v. Gibson, 78, 79 Mitchel V. Reynolds, 132 TABLE OF CASES CITED. liii Mitchell V. Baring, 250, 257 Mitchinson v. Hewson, 65, 341 Mitford V. Finden, 401 MoffattT. Edwards, 11 V. Van Millingen, 7, 41, 87 Mogadara v. Holt, 285 Mogg V. Baker, 452 Moggeridge v. Jones, 127 Mollne, Kx parte, 216, 276, 282 M0II07 T. Delves, 84, 182 Moltou T. Camroux, 61 Mondel v. Steele, 398 Monk T. Sharp, 430 Montague v. Perkins, 181 Moor V. Withy, 184 Moore, Ex parte, 442, 443 V. Barthrop, 23 V. Darton, 171 T. Manning, 144, 153 v. Petchell, 339 T. Strong, 341 V. Vanlute, 89 V. Warren, 156, 202 V. Wright; 354 Morgan v. Brundrett, 452 T. Davison, 205 V. Jones, 424 V. Richardson, 127 Morice v. Lee, 92 Morley v. Oulverwell, 42, 109, 217, 416 ' v. Inglis, 351 Morrell v. Frith, 339 Morris v. Dixon, 341 V. Lee, 10, 77, 131 V. Norfolk, 344 V. Walker, 150 Morrison v. Buchanan, 177 Morse v. Wilson, 305 Mortimer v. M'Callan, 136, 138 Moseley v. Hanfordj 96 Moss V. Hall, 230, 239, 241 Mossop V. Eaden, 365, 366 Mott V. Hicks, 147 Moule V. Brown, 19, 20, 202 Mountford v. Harper, 24 Mountstephen v. Brooke, 345, 409 Moxon V. Pulling, 150 Muilman v. D'Egaino, 175, 176, 272 MuUett V. Hutchison, 28 Mullick V. Radakissen, 175 Mnnroe v. Bordier, 124 Murray v. Earl of Stair, 96 V. East India Company, 7, 32, 53, 66,»331 V. Glass, 4, 63 V. King, 284, 286 V. Reeves, 456 Murrow v. Stuart, 152 Musgrave v. Drake, 47, 413 Mutford v. Walcot, 183, 256 Mutual Loan Fund v. Sudlow, 238 N. Nadin v. Battie, 243 Napier v. Schneider, 402 Nash v. Brown, 120 v. Duncomb, 110, 424 V. Hodgson, 220, 340 Neale v. Ovingtou, 409 V. Proctor, 412 V. Turton, 42, 43 Needham's case, 54, 55 Nelson v. Serle, 57, 123 V. Stocker, 60 Nerot V. Wallace, 132 Nevison v. Whitley, 304 New V. Swain, 373 Newen v. Gill, 279 Newmarch v. Clay, 51 Newsome v. Coles, 36, 51, 52 Newton v. Chorlton, 246 Nias V. Nicholson, 454 Nichols V. Bowes, 208 V. Diamond, 70, 71, 180 T. Norris, 237, 245 Nicholson v. Cooch, 430 V. Gouthit, 196 V. Revill, 232, 246 V. Ricketts, 43, 184 Nightingale v. Adams, 335 V. Withington, 59, 60 Nisbett V. Smith, 238 Nixon V. Phillips, 307 Noble V. Adams, 372 Noel V. Boyd, 416 V. Rich, 416 Nordenstrom v. Pitt, 299 Norman v. Booth, 43 1 Norris v. Aylett, 228, 244 V. Solomon, 89j 100 V. Solomonson, 293 North V. Wakefield, 245 North British Insurance Co. v. Lloyd, 235 Northam v. Latouche, 455 Norton v. Ellom, 209 V. Pickering, 286 V. Seymour, 44 Norwich Navigation Company v. Theo- bald, 51 Novelli V. Rossi, 149, 189 Noyes v. Price, 10 Nye V. Moseley, 131 0. Oakley v. Ooddeen, 118, 119, 120 V Eigby, 136: Obbardv. Betham, 74, 127, 446 Ockenden, Bx parte, 356 Offord T. Davis, 248 O'Keefe v. Dunn, 161, 264 Ord V. Fenwick, 56 V. Portal, 144 iiv TABLE OF CASES CITED. OiiSHe V. Young, 239 On- V. Maginnis, 249, 25P, 288 y. Union Bank of Scotland, 324 Orridge t. Sherborn, 1, 201 Osborn v. Donald, 151 Osbaldiston V. Simpson, 173 Oughterlony v. Basterby, 354 Oulds T. Harrison, 136, 163 Outhwaite v. Luntley, 186, 312, 313, 314 Overend, Gnruey & Co. v. Mid-Wales Railway, 66 Owen V. Homan, 235, 245 > v. Pizey, 192 T. Von Uster^ 180 T. Waters, 408, 410 V. Wilkinson, 8 Owens v. Porter, 139 Owensou v. Morse, 10, 155, 3T2 P. Pack V. Alexander, 270 Padwick v. Tamer, 411 Page, Ex parte, 445 V. Wiple, 393 Paine t. Guardians of the Strand Union, 66 Palethorpe v. Furnish, 342 Paley v. Field, 221 Palfrey v. Baker, 370 Palliser v. Ord, 36 Palmer's case, 321 Palmer v. Pratt, 91 Par, Ex parte, 443 Parker v. Bougheff, 72 T. Gordoff, 176, 201, 204, 270 T. Hutchinson, 297 v. Leigh, 192 Parkin v. Mood, 164 Parks T. Edge, 206, 207, 427 Parraiter v. Parmiter, 341 Parnther v. Gaitskell, 335 Parr v. Jewell, 165 Parry t. Nicholson, 316 Parsons v. Alexander, 134 Partridge v. Bank of England, 159 Pasmore v. North, 75, 160 Paterson v. Hardacre, 115, 116 V. Zachariah, 51 Paton, Ex parte, 442 Patterson v. Beecher, 253, 254 Paul T. Joel, 268 P.ayler t. Homersbam, 129, 232 Payne v. Jenkins, 28 Peacock's case, 319 Peacock y. Jeffrey, 352 T. Murrell, 112 y. Pursell, 279, 369 V. Ehodes, 144 Pearce v. Dayis, 23, 424, 425 Pearl y. Deacon, 237, 241 Pearse v. Pemberthy, 283 Pearson y. Crallan, 272 y. Garrett, 90 Pease, Ex parte, 449 y. Hirst, 122, 218 Peddell v. Gwynn, 70 Pellecat y. Angell, 387 Pemberton y. Shelton, 406 y. Vaughan, 132 Penkiyjl y. Oonnell, 69 Pennell y. Stephens, 432 Penny y. Innes, 142, 146 Penrose v. Martyr, 7 1 Pentz y. Stanton, 37 Perceval v. Framplin. 39 Percival y. Frampton, 116, 122 Perfect y. Musgrave, 8, 238 Perham y. Raynal, 343, 345 Perreiray. Jopp, 376 Perring y. Hone, 44 Perris V. Roberts, 221 Perry v. Atwood, 227 y. Jackson, 336 Peters y. Anderson, 220 y. Brown, 345 Peto y. Reynolds, 6, 84, 87, 89, 188 Petre v. Duncombe, 246 y. Hannay, 136 Pfiel v. Vanbatenberg, 222, 223 Philips, Ex parte, 444 y. Astling, 284 Phillips y. Allan, 385 y. Cockayne, 302 V. Cole, 421 ' y. Donn, 396 V. Gonld, 264, 266 v. Phillips, 338 V. Pickford, 453 y. Turner, 395 y. Warren, 426 Phillipps y. Inthum, 79, 194, 259 Philliskirk y. Pluckwell, 64 Philpot y. Bryant, 207, 239, 241, 455 Phipps y. Tanner, 80 Phipson y. Kneller, 285 Pickard y. Banks, 10 Pickin y. Graham, 279, 292, 293, 294 Pidcock y. Bishop, 130, 238 Pierce y. Fothergill, 297 Pierson y. Dunlop, 182, 214 y. Hutchinson, 362 Pigott y. Cubley, 169 Pike V. Stephens, 432 y. Street, 96, 147 Pillans y. Van Mierop, 182, 256 Pinard v. Clockman, 376 Piukerton v. Marshall, 450 Pinkney y. Hall, 43 Pinkua y. Peters, 173 Pitt y. Chappelow, 193, 451 y. Purssord, 246 Pittam y. Poster, 344 ■Plimley y. Westley, 110, 142, 291 Plomer v. Long, 220 TABLE OF CASKS CITED. Iv Pocklington v. Sylvester, 19, 202 Pocock T. Billing, 421 Poirierv. Morris, 122, 124, 157 Poland V. Glynn, 452 Pole V. Ford, 229, 242 Polglass V. Oliver, 10 Polhill V. Walter, 38, 180 Pollard V. Ogden, 166, 216, 326 Pollock V. Turnock, 398 Pontifex v. Jolly, 420 Poole T. Smith, 364 Pooley T. Brown, lOt, 156, 15T, 325 y. Herradine, 238 Popplewell T. Wilson, 82, 122, 125 Porthouse v. Parker, 193, 283, 291 Portugal (Queen of) v. Glynn, 403 Potez V. Glossop, 75, 446 Pott T. Beavan, 442 V. Clegg, 341, 424 V. Byton, 40 Potter V. Brown, 384 V. Rayworth, 292 Powell V. Ancell, 406 V. Eason, 454 T. Ford, 423 v. Graham, 57 V. Hellicar, 170 T. Jones, 185 V. Monier, 184, 366 y. Roche, 218, 222, Powles V. Page, 69, 283 Prescott, Ex parte, 356 V. Flinn, 33 y. Levi, 418 Preston v. Jackson, 140, 307 Prestwick v. Marshall, 63 Price v. Barker, 232, 240 v. Easton, 411 v. Edmunds, 8, 237, 238, 240, 242 v. Green, 132 v. Hewitt, 59 V Mitchell, 208 v. Neal, 193, 324 T. Price, 363, 364, 369 y. Taylor, 37, 71 y. Earl of Torrington, 426 Priddy y. Hendry, 82, 406 Prideaux y. Collier, 210, 286, 293 V. Webber, 335 Prince y. Brunatte, 64, 193 y. Heylin, 330 Pring y. Clarkson, 243 Prior V. Henbrow, 9 Pruessing y. Ing, 112 Puckford y. Maxwell, 372 Puckle V. Moor, 347 Paget de Bras v. Forbes, 124 Pugh y. Hookham, 454 Purdon v. Purdon, 341 Putnam y. Sullivan, 61 Purssord v. Peck, 417 Pym v. Campbell, 96 Q. Quantock y. England, 329 Quarrier v. Colston, 29, 385 R. Eabey r. Gilbert, 292, ,293 Rackham v. Marriott, 338 Raikes y. Todd, 221 Railton v. Mathews, 235 Rail! v. Derinistoan, 189, 378, 384 V. Sarrell, 187 Ramsbottom v. Cator, 152, 450 Ramsey v. Baton, 432 Ramuz v. Crowe, 363, 364 Randall v. Moon, 215 y. Trimen, 38 Ranelagh (Lord) v. Champaute, 306 Ranklin y. Weguelin, 170 Raper v. Birbeck, 149, 190 Raphael y. Bank of England, 34, 159 161 Bapp y. AUnutt, 111 Ratbbone, Ex parte, 433 Rawlings v. Hall, 404 Rawlinson y. Stone, 53 Rayner v. Fussey, 238, 239 v. Grote, 37 Raynes v. Jones, 456 Read, Ex parte, 437, 442, 444 y. Gamble, 423 Redmayne y. Barton, 365, 367 Reed v. Deere, 111 y. White, 192, 371 Rees y. Abbott, 409 V. Berrington, 238, 240 v. Warwick, 185 y. Watts, 353 Reeves v. Hearn, 226 y. Lambert, 454 V. Mackay, 454 Reg. y. Bartlett, 89 y. Bigge, 145 V. Blenkinsop, 318, 321 V. Butterwick, 318 y. Chawton, 198 V. Cook, 322, 323 y. Danger, 318 y. Gompertz, 110 V. Green, 323 y. Hill, 321 V. Ion, 321 V. Einnear, 89, 179 y. Morrison, 172 V. Oddy, 323 T. Perry, 16 y. Radford, 321 y. Badley, 452 y. Rogers, 319 y. Turpin, 318 y. White, 317, 318, 320 Ivi TABLE OP CASES CITED. Beg. V. Wilson, 319 Begilv. Green, 417 Reid V. Croft, 455 V. Dickons, 3l2 V. Furnival, 16?, 214 Renew v. Axton, 339 Rew V. Petit, 37, 71, 342 Bex T. Bingley, 322 V. Birkett, 321,322 V. Bontien, 319 V. Box, 80 , T. Bullock, 430 T. Burke, 318 T. Craven, 322 V. Dade, 322 T. Davis, 317 V. Dick, 322 T. Dunn, 318 V. Edwards, 318 V. Elsworth, 321 T. Francis, 319 T. Hales, 319 . V. Hart, 319 V. Hawkswood, 111,318 V. Hevey, 320 V. Holt, 51 T. Hunter, 84, 88 V. Johnson, 271 T. Jones, 318 T. Kirkwood, 322 V. Lambton, 146 V. Lee, 318 T. London, Sheriffs of, 400 T. M'Kay, 322 T. Millard, 323 T. Moffat, 318 V. Morris, 321 V. Parkes, 320 v. Pateman, 318 T. Peacock, 32 -', 323 V. Phipoe, 318 V. Plumer, 271 T. Pooley, 15 V. Port, 80 T. Post, 318, 321 T. Randall, 78, 318 V. Bevett, 131 V. Richards, 78, 318 V. Shukard, 321 T. Teague, 111, 321 V. Treble, 3Sl \ T. Watson, 271 V. Westbeer, 172 V. Watts, 320 V. Wilcox, 318 V. Yates, 15 Beynolds v. Davies, 410 T. Doyle, 126, 333 T. Hankin, 396 V. Peto, 6, 185 V. Wheeler, 8, 238, 247 Bhode V. Proctor, 282 Bhodcs, Ex parte, 150 Bhodes v. Gent, 209 V. Smethurst, 333, 336 Ehymes v. Olarkson, 74 Bice V. Stearns, 147 Bichards v. Frankam, 97, 422 v. James, 352 v. Macey, 87, 122 v. Bichards, 42, 64, 65, 92, 290 V. Thomas, 96 Richardson v. Bradshaw, 447 V. Jackson, 399 T. Hellish, 132, 133 Bichmond v. Heapy, 46, 445 Bickford v. Ridge, 19, 20, 202 Bidley v. Blackett, 24 V. Plymouth Company, 70 v. Taylor, 43, 47 v. Tindall, 416 Ridout V. Bristow, 57, 83, 96, 122 Bitchie v. Van Gclder, 428 Boach V. Johnston, 205 T. Ostler, 88, 89 V. Thompson, 393 Boberts, Ex parte, 433 v. Bethell, 183 V. Bradshaw, 271 V. Eden, 152, 165 V. Elsworth, 399 V. Peake, 90 V. Boberts, 132 V. Tremayne, 305, 307 V. Tucker, 179, 213, 214 Bobertson r. Kensington, 148 T. Sherward, 71, 78 Bobins v. Gibson, 252, 270 V. Maidstone, 117, 224, 422 V. May, 91 Robinson, Ex parte. 433 V. Bland,'84, 88, 140, 297, 383 T. Cotterell, 397 V. Hawksford, 20, 204 V. Little, 146 V. Read, 244, 370, 371 V. Beynolds, 124 V. Yarrow, 34, 194 Bobson y. Bennett, 19y 184, 202, 276 V. Curlewis, 268 v. Oliver, 155, 197, 210 V. Bolls, 151 Roche V. Campbell , 85 Roden v. Ryde, 422 Rodrick V. Hovill, 111 Bofey, Ex parte, 432 Boffey V. Greenwell, 92, 296 Bogerg, Ex parte, 444 V. Chilton, 415 V. Plook, 425 V. Hadley, 96, 127 V. Hunt, 252, 402 V. Kingston, 456 V. Langford, 154, 155,156,197, 210 V. Stephens, 249, 270, 291 TABLE OF CASKS CITED. Ivii Rogerson t. Hare, 279 Rolfe V. Caslon, 436 RoUeston v. Dixon, 412 V. Hibbert, 150 Rollin T. Steward, 18, 179, 216 Rolt T. Watson, 364 Romberg v. Falkland Islands Company, 393 Romellio r. Hallaghan, 454, 455 Rooman v. Nash, 435 Roscow V. Hardy, 264, 293 Rose V. Bowler, 57 V. Hart, 356 T. Main, 138, 432 V. Poulton, 42 T. Rowcroft, 74, 446, 447 T. Sims, 121, 150, 356 V. Tomlinson, 112 Rosewarne t. Billing, 139 Rosher v. Kieran, 279 Ross, Ex parte, 358 Eossiter t. Rossiter, 32 Rotch V. Edie, 387 Rothery v. Mannings, 339 Rothschild v. Barnes, 390 v. Corney, 164 V. Currie", 383, 386, 390 Rothwell V. Timbrell, 432 Rouse V. Redwood, 292 Rowe V. Tipper, 279, 280, 281 T. Young, 186, 205, 208 Rowlands v. Sprinjett, 269 Rowley v. Home, 51 Rowning v. Goodchild, 361 Rowton, Ex parte, 449 Hoyal Bank of Scotland, Ex parte, The 443 Royal British Bank v. Turquand, 70 Rucker t. Hannay, 342 T. Hiller, 288 Rudder v. Price, 406 Ruff V. Webb, 77 Rufford, Ex parte, 444 Rumball v. Ball, 209, 332 Rushton y. Aspinall, 409 Rushworth, Ex parte, 444 Russell V. Bell, 356, 357 T. Hankey, 24, 218 V. Langstaffe, 84, 160,181,196, 291 v. Lee, 57 V. Phillips, 178, 188 V. Pollett, 45 V. Powell, 7.7, 93 Bust V. Cooper, 452 Ryall V. Rolle, 3, 447 Ryder v. Ellis, 392 Sadi and Morris's case, 3 Sadler v. Nixon, 8 Sainsbury v. Parkinson, 2 Sainler v. Ferguson, 132 Salmon v. Webb, 97, 230 Sampson v. Burton, 356 T. Margitson, 198 Sanders t. Blane, 56 Sanderson v. Bowes, 85, 208 V. CoUman, 419 Sands v. Clarke, 197, 210 Sard T. Rhodes, 226, 227 Sargeant, Ex parte, 449 Sarratt v Austin, 437, 445 Saul T.Jones, 2fi6, 210 Saunderson v. GrifiBth, 32 V. Jackson, 83 V. Judge, 206, 270 T. Piper, 80 Savage T. Aldren, 148, 331 Sayer v. Chator, 7 T. Wagstaff, 370 Scales V. Jacob, 338 Scarpellini v. Atcheson, 64, 336 Schlld V. Kilpin, 411 Schoficld v. Bayard, 258 Scholey v. Dalton, 343 V. Ramsbottom, 214 V. Walsby,. 223, 426 T. Walton, 339 Schultz T. Astley, 160, 181, 407 Scott V. Gilmore, 139, 140 V. Lifford, 231, 275 V. Lord Seymour, 390 Scruggs V. Gass, 154 Sea Fire and Life Society, In re, 70 Searles v. Sadgrove, 223 Sebag V. Abithol, 186 Secar v. Atkinson, 57 Selby V. Eden, 84, 205 Semple v. Cole, 311 T. Cornwall, 307 Sentence t. Poole, 60 Serle v. Norton, 19, 75 T. Waterworth, 57, 123 Serrell v. Derbyshire Rail. Co., 164 Sewell V. Dale, 412 T. Erans, 422 Sharp T. Bailey, 85, 289 T. Gye, 454 T. Lethbridge, 399 Sharpe v. Gibbs, 228 Sharpies v. Rickard, 107 Sharratt, Ex parte, 452 Shaw V. Broom, 421 T. Croft, 279 Y. Harvey, 389 V. Picton, 226 Shearm v. Burnard, 423 Sheerman v. Thompson, 455 Shelton v. Braithwaite, 207, 268, 269, 273 Shenton v. James, 9l Shepherd v. Shepherd, 411 Sheppard's case, 319 Iviii TAE'LE OF CASES CITED. Sheppard t. Dry, 44 Sherrington v. Yates, 65 Shillito V. Theed, 135 Shirley v. Jacobs, 395 ShirreflFr. Willca, 48 Shortland, Ex parte, 452 Shrubsole t. Sussams, 430 Shute T. Robins, 175, 203, 204 Shuttleworth, Gx parte, 155 T. Stephens, 84, 88 Sibley v. Fisher, 316 Sibree t. Trip, 11, 227, 368 Siddall V. Rawcliffe, 407 Sidford t. Chambers, 149, 426 Siffkin V. Walker, 43 Sigell T. Jebb, 134 Siggers v. Brown, 270, 290 V. Lewis, 217, 240, 399 V. Nichols, 188 Sigourney v. Lloyd, 153 ' Simmonds v. Parminter, 408 Simmons v. Taylor, 22 Simons v. Johnson, 232 Simpkins v. Potecary, 406 Simpson, Ex parte, 452 T. Bloss, 131 T. Clarke, 115 T. Dick, 395 T. Egginton, 216 V. Pogson, 453, 455 T. Stackhouse, 316 Sims V. Simpson, 358 Simson y. Ingham, 219, 220 Sinclair v. Baggaley, 74, 446 Siordet v. Kuczinski, 113, 380 Skelton v. Watt, 455 Skilbeck t. Garbett, 270, 271 Skinner v. Stocks, 49 Skip T. Hucy, 238 Slade's case, 3 Slater v. Lawson, 343 Sleigh V. Sleigh, 286 Slipper V. Stidstone, 353 Sloman v. Cox, 230, 314 Small wood t. Vernon, 142 Smart v. Nodes, 110 T. Eayner, 420 Smith, Ex partCj 243, 432, 444 V. Abbott, 187 T. Ball, 407 V. Battens, 74; 346, 446 V. Bellamy, 208, 210 V. Boheme, 89 V. Braine, 117 T. Bromley, 129 V. Buchanan, 385 V. Caren, 171 V. Chester, 193 V. Clarke, 145 V. Clench, 417 i T. Cox, 411 V. Craven, 43 V. Cuff, 129 Smith V. De Wruilz, 421 T. Everett, 68 V. Ferrand, 244, 371 V. Forty, 341 T. Hill, 336 V. Hodson, 357, 358 V. Johnson, 60, 147 V. Jones, 237 V. Kendall, 80, 424 V. Knox, 125, 237 V. Lord, 75 V. M'Clnre, 80, 362 V. Marsack, 150, 193 V.Martin, 116, 117, 118,422 V. Mercer, 25, 214, 323, 325, 376 V. Mingay, 160 V. Monday, 365 V. Moneypenny, 422 V. Mullet, 275, 280, 281 V. Nightingale, 90 V. Pa?e, 227 V. Pickery, 150 V. Saltzman, 138 V. Sheppard, 213 V. Smith, 29 V. Thatcher, 283 V. Thome, 338 V. Vertue, 187 V. Winter, 52, 242, 245, 246 V. Whiting, 56 V. Woodcock, 400 Smout V. Ilbury, 38 Snaith v. Mingay, 84, 388 Soellgrove v. Baily, 170 Snow V. Peacock, 158, 213, 361 V. Sadler, 362 Soares v. Glyn, 147, 148 Solarte, Ex parte, 437 V. Palmer, 266, 268, 273 SoUers, Ex parte, 449 Solly V. Forbes, 232, 240 V. Hinde, 125 Solomon v. Turner, 128 Solomons v. Bank of England, 39, 159 V. Staveiy, 254 Southall V. Rigg, 140, 414 South Carolina Bank v. Case, 43 South Sea Co. v. Wymondsell, 332 Soutten v. Soutten, 435 Soward v. Palmer, 217, 240, 286 Sowerby v. Butcher, 36, 121, 122 Sparrow V. Carruthers, 63 v. Chisman, 46 Spears v. Hartley, 329 Spicer v. Burgess, 313 Spiller V. Johnson, 408 v. Westlake, 127, 187 Spindler v. Grellett, 208 Spong V. Wright, 339 Spooner v. Gardiner, 116, 288 Spratt V. Hobhoase, 10 Sproat V. Mathews,. 186, 187, 251 Sproule V. Legg, 85, 386, 408 TABLE OP CASES CITED. lix Spyer v. Thelwell, 407 Stables y. Ely, 52 V. O'Kines, 287 Stackwood v. Dunn, 355 Stagg V. Elliott, 33 Standage v. Creighton, 292 Starey v. Barns, 357 Starhouse v. Barnstoii, 330 Starke t. Cheesman, 84, 88, 210, 411 State Fire Insurance Co., In re, 70 Steadman v. Dubamel, 380, 387, 389 V. Gooch, 227, 229, 369 Stebbing v. Spicer, 78 Stedman T. Martinnant, 434 Steel V. Bradfield, 400 Steele v. Harmer, 42, 69, M3, 192, 228, 414 V. Benham, 192 Steers t. Lashley, 137 Stein v. Yglesias, 162, 163, 183 Stephens, Ex parte, 358 T. Reynolds, 43, 44 V. Underwood, 417 T. Wilkinson, 127 Stericker v. Barker, 411 Sterndale v. Hankinson, 335 Stevens v. Jackson, 59 V. Lloyd, 311 T. Lynch, 246, 292 T. Thacker, 191 Stevenson v. Newnham, 430 V. Oliver, 408 T. Roche, 242 Steward v. Dunn, 69 Stewart v. Kirkwall, 62 v. Lee, 22, 213 Stock T. Mawson, 130 Stockbridge v. Sussams, 354 Stocken v. Collin, 268, 270, 271, 275 Stockman v. Parr, 269 Stoessiger v. South Eastern Rail. Co., 83 Stone, Ex parte, 355 V. Compton, 238 V. Marsh, 213 V. Metcalfe, 95 Stones V. Butt, 292 Storm T. Stirling, 5, 12, 71, 77, 91, 93 Story T. Atkins, 6 Stoveld V. Eade, 219 Strachan v. Barton, 452 Straker v. Graham, 176, 375 Strange v. Ellison, 157 V. Lee, 220 V. Price, 266 V. Wigney, 361 Stratton v. Hill, 406 T. Matthews, 393, 396 Strickland v. Mansfield, 15 Strithorst v. Grsenie, 336 Strong V. Foster, 8, 237, 238 V. Hart, 244, 371 Stuart V. Bate, 169. Sturdy v. Henderson, 76, 201, 331 Sturleyn v. Albany, 54 Sturtevant v. Ford, 162 Suse v.jPompe, 147, 402 Sutton, Ex parte, 36 V. Toomer. 76, 314, 331, 424 Swain v. Lewis, 294 Swaine v. Wallinger, 329 V. Ware, 247 Swan, Ex parte, 181, 324 V. North British Australian Com- pany, 182 V. Steele, 43, 48, 49 Swann v. Cox, 187 Swansea v. Vanderkeyden, 59 Swayn v. Stephens, 336 Swears v. Wells, 111 Sweeting v. Fowler, 78 v. Halse, 111, 192 Swift v. Tyson, 39, 122 Swinyard v. Bowes, 284, 371 Sykes V. Gyles, 40, 371 Symonds v. Atkinson,, 394 Symonda v. May, 454, 455 T. Taft's case, 319 Tallis v. Tallis, 132 Tamvaco v. Simpson, 373 Tanner v. Smart, 338, 342, 348 Tapley v. Martens, 24 larleton v. AUbusen, 228, 369 Y-. Shingler, 313 Tassell v. Lewis, 200, 277 Tate V. Hilbert, 24, 170 Tatlock V. Harris, 79 Tattersall v. Fearnley, 1 13 V. Parkinson, 416 Tayler, Ex parte, 443 Taylor v. Booth, 80, 408 V. Briggs, 370 V. Burgess, 238 T. Croker, 60, 193, 194 T. Crowland Gas Co., 132 T. Dobbins, 83 T. Forbes, 394 V. Hipking, 334 T. Jones, 292 T. Kinloch, 74, 446 V. Moseley, 311, 316 T. Plumer, 372 V. Stott, 296 V. Wilson, 138 Teagae's case, 318 Teague v. Hubbard, 7, 42, 69, 87 Terrell v. Higgs, 403 Terry v. Parker, 210, 409 Thackray v. Blackett, 288, 362 Thibault v. Gibson, 308, 309 Thicknesse v. Bromilow, 44 Thiedemann v. Goldscbmidt, 124, 131 Thimbleby v. Barron, 230, 233, 240 Thomas, Ex parte, 444, 446 Ix TABLE OF CASES CITED. Thomas v. Bishop, 37 V. Courtnay, 130 T. Duan, 326, 399 V. Fenton, 289 V. Newton, 115, 404 V. Taylor, 403 Thoraason v. Frere, 53, 450 Thompson v. Brown, 220 V. Clubly, 147, 238 T. Dominy, 3 V. Giles, 450 V. Hodgson, 171 V. Perceval, 48, 192, 227, 371 V. Waithman, 344 T. Wesleyan Newspaper Asso- ciation, 69 Thome v. Smith, 379, 416 Thornton, Ex paate, 443 V. Dick, 189 V. IlUngworth, 58 Thorpe v. Booth, 332 Threlfall v. Lunt, 173 V. Webster, 399 Thrnpp v. Fielder, 58 Tickell V. Short, 339 Tigar v. Gordon, 407 Tiley v. Gonrsier, 10 Tlmmins v. Gibbins, 155, 156 Timmis v. Piatt, 413 Tims V. Williams, 72 Tindal v. Brown, 201, 246, 278, 279 Tinney v. Cecil, 454 Tinsou T. Francis, 162 Tippets T. Heane, 340 Titus V. Lady Preston, 198 Toley V. Oarlon, 173 Tomkins v. Ashby, 12, .28, 424 Toms V. Powell, 217, 393 Took T. Hollingworth, 448 V. Tuck, 129 Tootel, Ex parte, 433 Toppy V. Keysell, 430 Toulmin v. Price, 366 Togwood, Ex parte,. 444 Towler v. Chatterton, 346 Townrow v. Benson, 358 , Towns V. Mead, 336 Townaend v. Deacon, 336 Treacher t. Hinton, 283 Trecothick v. Edwin, 85, 203 Trent Navigation v. Harley, 239 Treultell v. Barando'n, 34, 152, 153, 393 Tricky v. Lame, 127 Trier v. Bridgman, 6 Triggs V. Newnham, 205 Trimby v. Vignier, 168, 249, 384 Trimmer v. Oddie, 185, 189 Trueman v. Fenton, 123 V. Hurst, 59 Tucker v. Robarts, 193 T. Wilson, 169 Tuft's case, 79 Tullock v. Dunn, 339, 343 Turner v. Deiiman, 412 V. Fitt, 408 V. Hoole, 129 V. Leach. 281, 291, 293 T. Mead, 202 V. Stones, 156, 197, 284 T. Taylor, 400 Turney v. Dodwell, 340 Twopenny v. Young, 192, 244 Tye V. Gwynne, 127 Tyers v. Stunt, 455 Udal V. Walton, 432 Udell V. Atherston, 120 Upstone V. Marchant, 112 Usburne, Bx parte, 5 1 Usher v. Dauncy, 160 Uther T. Rich, 117, 152, 158, 416 Vallance v. Slddel, 122, 307, 308 Valpy T. Oakley, 373 Vanderdonckt v. Thellusoa, 208 Vanderwall'v. Tyrrell, 250, 265, 257, 260, 262 Tandyk v. Hewitt, 132 Vansandau v. Corsbie, 435 Van Wart v. Wooley, 40, 156, 283, 284 Vaughan v. Fuller, 210,- 291 v. Harris, 400 V. Matthews, 419 Veal V. Veal, 171 Vere y. Ashby, 32, 48, 49 V. Lewis, 79 Vernon v. Boverie, 24, 218 Vincent v. Horlock, 146 Vise V. Fleming, 50 VuUiamy v. Noble, 51, 52 W. Wackerbath, Ex parte, 251, 258, 259, 261 Wade V. Beasley, 399 Wagstafif, Ex parte, 357 Wain V. Bailey, 222, 363, 364 Wainman v. Kynman, 338 Wake T. Harrop, 37 V. Tinkler, 351 Wakefield Bank, Ex parte, 449 Walker, Ex parte, 438 T. Atwood, 188 V. Barnes, 217, 240, 297, 399 V. Butler, 340 V. Clements, 333 .-i£,ji!: v. Cbllick, 334 ll;,| .i.j.>;ii .v }" V. M'Donald, 145nfiiiD...-,-.:,H ,y T. Neville, 233 ;ir...^]L TABLE OF CASES CITED. Ixi Walker t. Pilbeam, 434 V, Seaborne, 226 Wallace v. Hardacre, 133, 448, 450 T. Kelsall, 46, 218, 352 Waller t. Lacy, 220, 338, 340 Wallis V. Littell, 96 V. Swinburne, 435 Walmesley v. Child, 366 V. Cooper, 232 Walpole V. Pluteney, 191 Walter v. Cubley, 206, 311 V. Haynes, 270 Walters v. Brogden, 16 Walton v; Hastings, 312, 313, T. Mascall, 122, 197,284 Walwyn v. St. Quintiii, 214, 242, 286, 288 Wankford r. Wankford, 54, 55 Ward V. Byrne, 132 v." Clarke, 431 V. Evans, 10, 24, 155, 156, 202, 375 T. Johnson, 228 V. Turner, 170 Ward (Lord) v. Oxford Railway Co., 15 Ware v. Lord Bgmont, 119 Waring, Ex parte, 449 Warmsley v. Macey, 395 Warrington, Ex parte, 307, 308 V. Early, 312 V. Furbor, 196, 197, 284 Warwick v. Bruce, 60 T. Nairn, 127 V . Noakes, 367 T. Rogers, 189 Washbonrne v. Burrows, 309 Waters v. Thanes, 329 T. Tompkins, 346 Watkins v. Maule, 53, 150 V. Morgan, 295 T. Wake, 406 Watson V. Aloock, 240, 242 T. Evans, 78 T. Kightly, 82, 406 v. Medex, 4, 35 V. Poulson, 110 T. Russell, 159 Walters r. Smith, 226 Watts v. Jefferies, 26 T. Shuttleworth, 239 Waugh V. Carver, 45 Way V. Hearne, 75 Waynam v. Bend, 11, 149, 424 Webb's case, 320 Webb v. Firmaner, 1 98 V. Hewitt, 245 v. Inwards, 398 , y. Spicer, 95, 97, 230 V. Weatherby, 416 Webster, Ex parte, 433 V. Kirke, 330, 333 V. Spencer, 56 Weldrake v. Hurley, 179 Weeks v. Argent, 413 Wegersloffe v. Reeve, 188, 411 Welby V. Drake, 221, 226 Welch V. Seaborn, 424 Wells V. Girling, 129, 304 Y. Hopkins, 125 T. Masterman, 43, 46 V. Porter, 136 Wennall v. Adney, 123 Westcott V. Hodges, 434 Westmacott v. Cook, 394 Weston T. Toralinson, 296 Whaley v. Pajot, 135 Whateley v. Crowter, 403 Whatley v. Tricker, 191 Wheatley V. Williams, 11, 424 Wheeler v. Wheeler, 56 Wheelwright v. Jutting, 396. Whirley's ease, 319 Whistler v. Foster, 17, 112 V. Fowler, 150 Whitaker v. The Bank of England, 179, ' 204, 216 Whitcombe v. Whiting, 343 White, Ex parte 314 V. Ledwick, 82 v. North, 11 V. Wright, 307 Whitehead v. Walker, 161, 163, 264, 333 WUitelock v. Musgrove, 422 Whitfield V. Hodges, 242 V. Lord Le Despencer, J60 Whitlock V. Underwood, 76, 204 Whitmore v. Francis, 404 Whittaker v. Edmonds, 116 Whitwell V. Bennett, 16 Wiffeu V. Roberts, 124, 125, 200 Wigan V. Fowler, 67 Wiggins V. Read, 135 Wilders V. Stevens, 122, 150 Wildmans, Ex parte 392, 443 Wilkes V. Hopkins, 423 Wilkin v. Reed, 428 Wilkins v. Casey, 451 V. Jadis, 205, 294 Wilks V. Adcock, 396 V. Back, 44 V. Jacks, 287 Wilkinson v. Byers, 226 V. Godfrey, 26 V. Johnson, 149, 190,325 V. Leaugier,, 29, 403, 404 V. Lutwidge, 193 Williams, Ex purte, 296 V. Bartholomew, 292 T. Bulraore, 140 V. Burrell, 53 V. Clarke, 150 V. Evans, 371 V. Everett, 179 V. Germaine, 201, 256, 258 T. Griffith, 220, 338, 339 T. Harrison, 58 V. James, 215 V. Jarrett, 112 Ixii TABLE OF CASES CITED. WilUains v. Jones, 329 y. Reals, 51, 52 V. Moore, 58, 59 T. Seagrove, 148 T. Smith, 204, 274, 275 T. Thomas, 53 V. Trye, 136 V. Wiring, 85, 208 'Williamson v. Bennett, 28, 91 T. Johtison, 44 I V. Watts, 58, 59 Willins V. Smith, 342 Willis V. Bank of England, 159 V. Barrett, 78 V. De Castro, 232 v. Newham, 346 Willison V. Patterson, 65, 133 T. Whilaker, 241 Wills T. Noot, 112 Wilmot V. Williams, 207 Wilson, Ex parte, 243, 432 V. Bartbrop, 38 V. Gabriel, 350 V. Justice, 312 V. Ray, 129 V. Reddall, 409 V. Stubs, 78 V. Swabey, 278, 280 V. Tummon, 32, 48, 49 V. Vysar, 110 Wilton, In re, 370 Winch V. Fenn, 303, 400 Winchester, Bishop of, v. Fournier, 173 Windham v. Wither, 392, 400 Windle v. Andrews, 82, 253, 254 Winterbottom's case, 56 Wintle T. Crowther, 48 Wise y. Charlton, 12, 95, 108 V. Prowse, 392 Withall V. Maslerman, 246 Witham v. Gumpertz, 395 Witt V. Amiss, 170 Wittersheim Vi Lady Carlisle, 331 Wodehouse v. Farebrother, 237, 403 Wood V. Braddick, 342, 343 T. Brown, 291 v. Copper Miners' Co., 403 y. Dodgson, 434 V. Grimwood, 302 V. Jowett, 454 V. Mytton, 6 T. Peyton, 419 V. Smith, 358 Woodbridge v. Spooner, 4, 96 Woodcock V. Houldsworth, 270 Woodford y. Whiteley, 363, 364, 372 Woodland v. Fear, 25, 156, 277 Woodroffe y. flayne, 122, 220 Woods y. Dean, 293 Woodthorpe y. Lawes, 267, 269, 279 Woodward v. Lord Dacy, 55 Wookey v. Poole, 152, 159 , Woolley y. Clark, 53 Woolner v. Deyereux, 326 Wiiolsey V. Crawford, 402 Woolway v. Eowe, 421 Worley V. Harrison, 91 Worrall, Ex parte, 443 Worthington y. Grimsditch, 340, 341 Wright V. Laing, 220 y. Lainson, 74, 446 V. Leonard, 60, 62 T. Eced, 10 y. Riley, 111 y. Shawcross, 274 y. Watts, 417 Wyat V. Bulmer, 138 Wyatt y. Marquis of Hertford, 24 Wych V. East India Co., 335 Wyke y. Rogers, 245 Wylde, Ex parte, 260, 261 Wylie's case, 323 Wyllie y. Pollen, 120 Wynne y. Collanderi 140, 384 y. Jackson, 384, 387 y. Raikes, 183, 184 Ximenes y. Jacques, 135. Y. Yallop V. Ebers, 237 Yarborough V. Bank of England, 145 Yates, Ex parte, 145, 312,313 V.Bell, 179, 180 y. Dalton, 45 y. Groye, 93 y. Hoppe, 126 y. Nash, 71, 77, 93 V. Sherrington, 65 Yea y. Fouraker, 842 Yeomans y. Bradshaw, 54 Yonge, Ex parte, 434 Young y. Adams, 154, 157 y. Bank of Bengal, 356, 357 V. Code, 157 V. Grbte, 25, 324 V. Gtiger, 354 Zinck y. Waller, 449 Zouch y. Clay, 310 y. Parsons, 58 BILLS OF EXCHANGE. CHAPTER I. GENERAL OBSERVATIONS ON A BILL OP EXCHANGE. MAT BE TAKEN IN EXECUTION, . 3 WHEBE A BILL OK NOTE MAT OPERATE AS A WILL OK TESTAMENTABT IN- STKUMENT, 4 AS A DECLARATION OF TRUST, ■ . 4 EXPLANATION OP TERMS, . . .1 PKOULIAB QUALITIES OF CONTRACTS ON BILLS OK NOTES, ... 2 EFFECT OF DRAWING OE INDOBSINO A BILL, 3 HOW FAR BILLS AND NOTES ABE CON- SIDERED AS CHATTELS, . . 3 A Bill of Exchange is an unconditional written order(a) from A. to B. directing B. to pay C. a sum of money therein named.(l) (a) It is said, that it was formerly essential to the validity of a bill of exchange, that it should be drawn in one place and payable in another : no such requisite now exists by the English law, although it is in general otherwise, a.ccording to the definitions in the codes prevailing on the continent of Europe ; see the note of Mr. Serjeant Manning to Miller v. Thompson, 4 M. & G. 260. (1) This definition is remarkable for its conciseness and accuracy. The learned author uses the word " direct" instead of the word " request," which is the more usual. The former word implies a command, and that the drawer has a right to require the payment. The case of Little v. Slackford (1 Moody and Malkin, 171; 22 Eng. Com. Law, 280), is supposed to support the position that a bill of exchange must purport to be a demand made by a party having a right to call on the other to pay. That was a case, however, in which the paper was offered under a count for money paid, and was objected to for want of a stamp. In Euff v. We,bb, 1 Esp. Rep. 129, the paper was : " Mr. Nelson will much oblige Mr. Webb, by paying J. Euff or order twenty guineas on his account." Lord Kenyon held it to be a bill of exchange. Judge Story has remarked that language of mere civility cannot, of itself, change the nature of the instrument ; and in order to displace the construction, that the instru- ment is a bill, it would seem to require, that the language necessarily imported to ask a favor and not to be words of civility. Story on Bills, § 33,''note. It must be admitted that this is attempting a very refined distinction, and frequently of very difficult appli- 64 GENERAL OBSEKVATIONS A. is called the drawer, B. the drawee, and C. the payee. Sometimes A. the drawer is himself the payee. And usually the bill is made payable, not to the payee alone, but also to his order or to the bearer. When B., the drawee, has undertaken to pay the bill, he is called the acceptor; If the bill is made payable to C, or hearer, C. may transfer the bill to D. by merely delivering it into his hands, and then D. stands cation in the construction of sucii instruments. It is well settled tliat it is not neces- sary to constitute a bill of exchange that the drawer should hare funds in the hands of the drawee: Lu£f v. Pope, 5 Hill, 413 ; S. C. Y Hill, 57Y; and even where he has, it is not in all cases that he has a right to draw. To give such right there must be an agreement to accept, or a usage of trade, or course of dealing between the parties equivalent thereto. Where the draft is for a part only of the debt due the drawer, the creditor has no right to divide his cause of actipn without the consent of the debtor. Where the whole of a particular fund or debt by name is drawn for, so as to give the payee or holder a right to sue the drawee without acceptance In the name of the drawer, this is an assignment in equity, but not a bill of exchange. Harrison v. Williamson, 2 Edw. Rep. 430 ; Quin y. Hanford, 1 Hill, 82 f Mandeville V. Welch, 5 Wheaton, 286. It seems therefore that Bayley's definition, which has been adopted by Chancellor Kent, is preferable to that in the text. " A bill of exchange is a written order or request by one person to another for the payment of money absolutely and at all events." Judge Story objects to this, as well as other definitions, on the ground that it does not include the idea of negotiability, which, he thinks, although not by our law essential to the instrument, yet undoubtedly is that peculiar distinguishable quality, which, practically speaking, among merchants constitutes its true character. Story on Bills, §§ 2, 3, 4. He accordingly expresses a preference for Mr. Kyd's defi- nition, Kyd on Bills, p. 3. "An open letter of request, addressed by one person to a second, desiring him to pay a sum of money to a third or any other to whom that third person shall order it to be paid ; or it may be payable to bearer." It is to be observed, however, that this definition expresses merely the idea of assignability, not of negotiability, which is that peculiar commercial quality by which not only the instrument is assignable at law, but the assignee for value bond fide and without notice cannot be affected by any equities, as between the original or prior parties. It has been expressly held that a bill not payable to order or bearer is still a bill of exchange. Wills v. Brigham, 6 Gushing, 6. It is not essential to the validity of a bill of exchange that it be in form negotiable, nor that it should contain the words, " for value received." Coursia v. Tedlie's adms., 7 Casey, 506 ; Arnold v. Sprague, 34 Vermoiit, 402. And as to promissory notes, the point is well settled that though not made payable to order or bearer, yet if the payee puts his name upon it and transfers it he is liable as an indorser, and the instrument may be declared on as a promissory note. Bates v. Butler, 46 Maine, 387. It would be inaccurate there- fore to include the idea even of assignability. It is evident that all the qualities of an instrument need not enter into the definition, but only such as distinguish it on its face from other instruments. ON A BILL OF EXCHANGE. 65 in the same situation with regard to B. the acceptor, as 0. the original payee did. If the bill be payable to C, or order, then C. cannot transfer, except by a written order, usually on the back of the bill, called an indorsement, after which C. is called the *indorser, and D., j-^n-, to whom it may be so transferred, the indorsee. (5)(1) (i) See Chap. xi. on Transfer. (1) It is worthy of note that the author by transfer in this passage means a transfer to pass a legal title to the holder so as to enable him to sue in his own name. There may be an assignment in equity for a valuable consideration of a bill or not, just as there may be of any other chose in action. Jones v. Witter, 13 Mass. 304 ; Dunn v. Snell, 15 Ibid. 485 ; Titcomb v. Thomas, 5 Greenleaf, 282. A, deed of assignment of bills of exchange and negotiable notes does not pass the legal but only the equitable title to them. Grand Gulf Bank v. Wood, 12 Smedes and Marshall, 482. The rule of the common law forbade the assignment of choses in action as tending to mafntenance. The Court of Chancery, however, at an early day took cognizance of such assignments, and gave effect to them by treating the assignor as a trustee for the assignee. They^held that payment to the original creditor after notice of the assignment did not discharge the debtor, though the assignee took the chose in action subject to all the equities which attached to it in the hands of the assignor at the time of the assignment. 2 Vern. 428, 540, 595, 692. In courts of law the interest of the equitable assignee soon came to be recog- nized. Still however it always was, and unless when modified by express statute still is, necessary that the suit should be carried on in the name of the assignor _ Subject to this technical rale in regard to the form of the action, the equitable assignee is regarded as the real owner, his rights protected and his remedies pre- served, even against the acts and deeds of the legal plaintiff on the record. Thus the bankruptcy of the assignor was decided to be no impediment to an action in his name where the debt had been assigned before the bankruptcy. Winch v. Keeiey, 1 T. R. 619; Carpenter V. Morrell, 3 Bos. & Pull. 40. So in other respects. See the learned opinion of Buller, J., in Master v. Miller, 4 T. R. 340. The American Conrts have followed in the track of these decisions with even still greater liberality. In Welch v. Mandeville, 1 Wheat. 233, it was determined that a nominal plaintiff, suing for the benefit of his assignee, cannot, by a dismissal of the suit under a collusive agreement with the defendant, create a valid bar against any subsequent suit for the same cause of action. Judge Story said : " Courts of law following in this respect the rules of equity, now take notice of assignments of cboses in action, and exert themselves to afford them every support and protection not inconsistent with the established principles and modes of proceeding which govern tribunals acting according to the course of the common law." Thus pay- ment or release, after notice of the assignment, is no defence. Littlefield v. Story, 3 Johns. 426; Raymond v. Squier, 11 Johns. i1 ; Dix v. Cobb, 4 Mass. 511; Wheeler V. Wheeler, 9 Cowen, 34; Eastman v. Wright, 6 Pick. 316; Laughlin v. Fairbanks, 8 Missouri, 3S1 ; Parker v. Kelley, 10 Smedes and Marshall, 184; the State V. Jennings, 5 English, 428. The nominal plaintiff will not be allowed to discontinue the action. McCuUum v. Coxe, 1 Dall. 139. Nor can the debtor set 5 66 GENERAL OBSERVATIONS Holder is a general word, applied to any one in actual or con- structive possession of the bill(c), and entitled, at law, to recover or (c) A man who has no interest in the bill, nor possession of it, but only lends his name for the purpose of suing on it, is not the holder. Emmett T. Tottenham, 8 Exch. 884 ; Gill v. Lord Chesterfield, Ibid. ; Sainsbury v. Parkinson, Ibid. But if before action it be indorsed and delivered to an agent without his principal's know- ledge, and the principal after action brought ratifies the delivery, that ratification will relate back and make the agent holder from the time of delivery. Ancona v. Marks, 31 L. J. 163, Exch.; Y H. & N. 686, s. o. off any demands against the assignor which accrued after notice of the assignment. Goodwin v. Cunningham, 12 Mass. 193 ; Jenkins v. Brewster, 14 Ibid. 291 ; Samp- son T. Fletcher, 1 Vermont, 168 ; Cummings v. FuUum, 13 Vermont, 434 ; Bartlett Y. Pearson, 29 Maine, 9. So the assignee is protected against the declarations and acts of the assignor subsequent to the assignment : they are inadmissible in evidence against him. Kimball t. Huntington, 10 Wend. 6Y5 ; Lister t. Baker, 6 Blackford, 439. An assignment of a particular claim passes to the assignee all securities and remedies which the assignor had to secure and recover it, though they are not spe- cifically mentioned in the assignment. Miller v. Ord, 2 Binn. 382; Mebaffy v. Share, 2 Penna. Rep. 361 ; Waller t. Tate, 4 B. Monroe, 529; Farmers and Drovers Bank V. Fordyce, 1 Penna. State Rep. 445; Fox v. Foster, 4 lb. 119; Cathcart's Appeal, 13 Ibid. 182. When the assignor is insolvent and a suit is pending in his name for the assignee's benefit, the court will allow the defendant, after verdict, to suggest on the docket for whose use that suit is brought, and will rule the assignee to pay the costs. C^nby v. Ridgway, 1 Binn. 496. The person for whose use an action has been brought, is liable in assumpsit, upon an express promise to pay the defendant in such action the amount of costs incurred. Brewer v. Hays, 2 Watts, 12. Where a chose in action is assigned before suit brought, the nominal plaintiff is not liable for costs ; but when the assignment is not made until after suit brought, he is liable not only for the costs accrued at the time of the assignment, but for all which may subsequently accrue. Wistar v. Walker, 2 P. A. Browne, 171 ; Martin V. Stille, 3 Wharton, 337 ; MxiLughan v. Bovard, 4 Watts, 308. The death of the assignor does not defeat .the assignment, but the assignee may use the name of the executor or administrator of the assignor, to recover the money. Dawes v. Boylston, 9 Mass. 337 ; Cutts v. Perkins, 12 Mass. 206 ; Grover v. Grover, 24 Pick. 261. The assignee will be protected against attachments by creditors of the assignor. In Connecticut, indeed, it has been held that, to render an assignment complete as to third persons, notice to the original debtor is necessary. Woodbridge v. Perkins, 3 Day, 364 ; Judah v. Judd, 5 Ibid. 534; Warren v. Copelin, 4 Metcalf, 594; Van- buskirk v. Ins. Co. 14 Conn. 141. Even in that State, however, an assignment of a chose in action, without notice to the debtor, is valid as between the parties ; and no person who has knowledge of the assignment can be regarded as a bonS. fide creditor for the purpose of defeating it. Bishop v. golcomb, 10 Conn. 444. But the law has not been so held elsewhere. It is sufiScient if notice is given to the 'debtor in time to enable him to protect himself by taking defence against the attachment. Dix v. Cobb, 4 Mass. 512; Stevens v. Stevens, 1 Ashmead, 190; .Stockton V. Hall, Harden, 160 ; Nesmith v. Drum, 8 Watts k Serg. 9 ; Littlefield v. ■Smith, 5 Shepl. 327. An order, draft, or bill, drawn for the whole of a particular fund, is an equitable ON A BILL OF EXCHANGE. 67 receive its contents((?) from the parties to it. No one but the holder can maintain an action on a bill of exchange. (<{) This latter branch of the definition is equally essential. For if a man find or steal a bill, though his mere possession will give him a title to retain the instru- ment as against strangers, yet he cannot sue on the bill, for under a traverse of the indorsement or delivery to himself, which he must allege in his declaration, the circumstances attending his acquisition of the bill may be shown. Marston v. Allen, 8 M. & W. 494. assignment of such fund to the payee, and binds it after notice to the drawee. Mandeville v. Welch, 5 Wheat. 285 ; Bobbins v. Bacon, i Greenleaf, 346 ; Corser v. Craig, 1 Wash. C. 0. 424. But although notice is necessary, in order to make it available against payment or other discharge of the debtor, it has been held not necessary to render it valid as to third parties. A draft upon a particular fund, in the hands of an attorney, for collection, is an equitable assignment of it, and, although not accepted by the attorney, yet it is not afterwards subject to be attached for the debt of the drawer. Nesmith v. Drum, 8 Watts & Serg. 9. However, since it is not in the power of a creditor to split his cause of action, without the debtor's consent, an order or draft for a part only of the debt due from the drawee to the drawer, does not, against the consent of the drawee, amount to an assignment of such part. Gibson v. Cook, 20 Pick. 15. " An equitable assignment is an agree- ment in the nature of a declaration of trust which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on valuable or even good consideration." Nesmith v. Drum, 8 Watts & Serg. 10. But see Kennedy v. Ware, 1 Penna. State Rep. 445, in which it is held that such an assign- ment, in consideration of. natural love and affection, is void. See Anon(., 2 Hayw. 352 ; Ellis v. Amason, 2 Dev. Ch. 2T3 ; Braham v. Ragland, 3 Stewart, 247 ; Blin V. Pierce, 20 Vermont, 25; Langley v. Berry, 14 New Hamp. 82; Brown v. Foster, 4 Gushing, 214. In a valuable note to the case of Welch v. Mandeville, 1 Wheat. 236, the learned reporter shows that, though the civil law considers choses in action, as strictly speaking, not assignable ; yet by the invention of a fiction, the Roman jurisconsults contrived to attain this object. The creditor who wished to transfer his right of action to another person, constituted him his attorney or jaro- curalor in rem suam, as it was called ; and it was stipulated that the action should be brought in the name of the assignor, but for the benefit and at the expense of the assignee. Pothier de Vente, No. 550. After notice to the debtor, this assign- ment operated a complete cession of the debt, and invalidated a payment to any other person than the assignee, or a release from any other person than him. lb. 110, 554, Cod. Napoleon, liv. 3, tit. 6; De la Vente, c. 8, s. 1690. The holder of a bill of exchange is not the owner of the money, goods or effects which the drawer has remitted to the drawee; nor has he any lien upon the funds, whether the remittance was made before or after the date of the bill. His bill is pay- able at all events, and his remedy for non-payment is an action on the bill itself against the parties to it. He has no claim on any particular fund, which he can follow into the hands of other parties. This has been so long and so universally regarded as true, that an order to pay money out of a particular fund is not anywhere con- sidered as a bill of exchange at all. Black, 0. J., Hopkins v. Beebe, 2 Casey, 88 ; New York Bank v. Gibson, 5 Duer, 5'7.4; Butterworth v. Peck, 5 Bosworth, 341. A bill of exchange does not, until accepted, operate as an assignment of the funds in the 68 OENEJIAL 0£SEBTATIONS By {he common law of England no contract or debt is assignable, our ancestors appearing, in the times of simplicity, to have apprehended from such transfer much oppression and litigation. But mercantile experience has proved the assignment of debts to be indispensable, and bills of exchange to be the most convenient instruments for facilitating, securing, and authenticating the transfer. They have, therefore, come into universal use among all civilized nations, and the common law has recognized them as part of the law merchant.{e) The common law again distinguishes contracts into two kinds: contracts under seal or by deed ; and contracts not under seal or simple contracts. Contracts under seal are valid without considera- tion ; simple contracts are void unless consideration be averred in pleading and established in evidence. All the contracts arising on a bill of exchange are simple contracts, but they differ from other simple contracts in these two. particulars: p;^„-| .first, that the benefit of the contract *is assignable at law, -and its obligation communicable(/) ; secondly, that consider- ation -will be presumed till the contrary appear. (1) (e) Usages which are part of the law merchant need not be pleaded. Such are the assignable qualities of bills of exchange and bills of lading. Such also the general' lien of bankers on the securities of their customers. " When," says Lord Campbell, " a general visage has been judicially ascertained and recognized, it becomes part of the law merchant, -which Courts of justice are bound to know and recognize." Brandao t. Barnett, 3 0. B. 530, Dom. Proc. ; Barnett v. Brandao, 6 M. & G. 665. (/) In one sense a bill of lading is at common law assignable, that is to say, its indorsement assigns the property, but does not transfer the contract. Thompson v. Dominy, 14 M. & W. 403. Now, however, by a recent statute, rights of action pass to the indorsee of a bill of lading. (18 & 19 Vict. c. 111.) hands of the drawee. Sands v. Matthews, 21 Alabama, 399 ; Kimball t. Donald, 20 Missouri, 577; Engler v. Rice, Ibid. 583. Where A. draws his draft in favor of C. upon funds in the hands of B., and B. accepts it, this operates as a valid equi^- ble assignment of the fund to C, and entitles him to hold it as against all persons not having a prior or better equity. Wells v. Williams, 39 Barbour, 567. A bill, though not accepted, may amount to an assignment of the whole fund in the hands of the drawee, if the bill be for exactly the amount of it. Wheatley v. Strobe, 12 California, 92. When one accepts a bill on the faith of funds pf the drawer in his hands, he acquires an equitable interest in those funds, and is entitled to set off his liability on the acceptances and retain them for his security. Lambert v. Jones, 2 Patton and Heath, 144. A general assignment of assets, after a bill has been accepted, will not pass the funds in the hands of the acceptor, against which the bill of exchange was drawn. Buckner v. Sayre, 18 B. Monroe, 745. (1) Bills and notes, unlike other parol contracts, are prima facie evidence of valu- ON A BILL OB BXCtfANGB. 69 The legal effect of drawing a bill, payable to a third person, is a conditional contract by the drawer to pay" the payee, his order, or able consideration, not only aa between the original parties, but as against third persons. In all cases where the bill can be used> as> evidence, either against the parties or against third persons, the same legal presumiption arises of its having been given for value received as exists in relation to a deed expressed to be given for a valuable consideration. ' A bill of exchange, therefore, although according to the general principles of the common law it is to be considered in the light of a simple contract, is neverfheless in this respect entitled to the privilege of a speciality, which carrying with it internal evidence of a valuable consideration, supersedes the necessity of averring and proving one. This privilege always belonged to foreign bills, and has at length, though not without some struggles as it is said, been con- ceded to inland or domestic bills, and promissory notes. Mandeville v. Welch, 5 Wheaton, 577 ; Murry v. Clayburn, 2 Bibb, 300 ; Lines v. Smith, 4 Florida, 47. Value is implied in every acceptance or indorsement of a bill or note, and the burden of proof is on the other party, to rebut this presumption. Clark \. Schneider, 17 Missouri, 295. The principle is confined, however, to paper strictly negotiable, and does not apply to notes or bills which do not fall within that category. Thus an accepted order payable in merchandise does not import consideration. Jeffries V. Hager, 18 Missouri, 272. As between the original parties, however, the bill is only prima facie evidence of consideration, and it may be inquired into and rebutted. The People v. Howell, 4 Johns. 296,303; Pearson v. Pearson, 7 Johns. 26, 28; Schoonmaker v. Roosa et al., 17 Johns. 301 ; Ryberg et al. v. Snell, 2 Wash. 0. 0. Rep. 294. And on the same principle, where the consideration is less than the amount of the bill or note, no recovery can be had beyond the sum actually paid. Bramin v. Hess, 13 Johns. 52 ; Brown y. Mott, 7 Johns. 361 ; Mann v. Commission Co., 15 Johns. 44. So if the holder claim by indorsement after the note or bill has become due, or has taken it with a knowledge of fraud or other equitable circumstances, entitling the maker to avail himself of the defence, this is equally provable as a want or failure of con- sideration between the original parties. It is to be carefully noted as a very impor- tant and well-settled distinction, however, that the mere knowledge of the holder when he took the note that it was without consideration as between the original parties, or in other words, an accommodation note or bill, is not available as a defence, and will not be suCScient to throw upon the holder the burden of proving that he gave value, though if it be shown that the note or bill has been put into circulation fraudulently or feloniously, that will shift the onus. Jarden v. Davis, 5 Wharton, 338 ; Albrecht v. Strimpler, 7 Barr, 476. But want or failure of con- sideration may be set up against a holder who takes the instrument after it becomes due. Barnet v. Offerman, 7 Watts, 130. If, however, an action is brought by the indorsee of a bill or note, who has given value for it, before it arrives at maturity, when it is not void in'its creation, the consideration in general cannot be the subject of inquiry. The diversity is founded in this : that to strengthen and facilitate commercial intercourse, which is carried on through the medium of this species of security, it is^ necessary that the fair holder of a bill for value paid should not be affected by a want of consideration between the prior parties. If, however, the holder of a bill received it without consideration, then, as was justly said by Eyre, C. J., in. Collins V. Martin et al., 1 Bos. and Pul. 651, "He is in privity with the first holder and 70 GENERAL OBSERVATIONS the bearer, as the case may be, if the acceptor do not. The effect of accepting a bill, or making a note, is an absolute contract, on the part of the acceptor of the one, or maker of the other, to pay the payee, or order, or bearer, as the instrument may require. The effect of indorsing is a conditional contract, on the part of the indorser, to pay the immediate or any succeeding indorsee or bearer, in case of the acceptor's or maker's default.(l) Bonds, bills, notes and other securities are -not the subjects of larceny at common law. For the words bona et catalla, used in indictments, " don't of their proper nature," says Lord Coke, "extend to charters and evidences concerning freehold,, or inherit- ance, or obligations, or other deeds or specialties, being things in action. "(^) And these observations as to obligations and deeds are at common law applicable also to bills of exchange and prom- issory notes.(A) In an indictment, bills or notes ought not in strict propriety to be described as chattels, (i) But, for almost all purposes, they are comprehended under the general words geodg and chattels, or either of them. Thus, as chattels, they are forfeitable to the Crown, and may be the subject of reputed ownership or fraudulent transfer. (y)(2) [g) Calye's case, 8 Co. Eep. 33 ; 4 Bla. Com. 234 ; 2 East, P. C. 597. But see now 24 & 25 Vict. c. 96, ss. 1 & 2T, b? which, for the purposes of that act relating to larceny, they are comprehended within the words " valuable security" and the word "property." (A) 4 Bla. Com. 234; 2 East, P. 0. (j) Sadi and Morris's case, 2 East, P. C. 16, s. 37. (j) Slade's case, 4 Co. Eep. 93 ; Bullock v. Dodds, 2 B. & Aid. 258 ; Kyal v. BoUe, 1 Atk. 165 ; 1 Ves. sen. 363 ; Hornblower v. Proud, 2 B. & Aid. 327 ; Cum- will be affected by everything which would affect him." Lawrence v. Stonington Bank, 6 Conn. 521. (1) It should be added, perhaps, and in case proper and prompt measures be taken to fix the indorser by making demand of the acceptor or maker, and giving notice of his default to the indorser. This is that which distinguishes a mercan- tile indorsement from an ordinary contract of guarantee for the debt or default of another. (2) At common law a chose in action is not the subject of larceny. United States V. Davis, 5 Mason, 356 ; Culp v. The State, 1 Porter, 33 ; The State v. Calvin, 2 Nevr Jersey, 207. In most of the States express statutes have been passed, making the stealing of bank notes, promissory nates, and other securities, indictable and punishable as larceny. ON A BILL OF EXCHANSB. 71 At common law, neither money or securities for money could be taken in execution, at the suit of a subject. !But now, by the 1 & 2 Vict. c. 110, s. 12, money, bank notes, *checks, bills, promis- p^ .-■ sory notes, and other securities for money, may be taken in execution. The money and bank notes are to be handed over by the sheriff to the execution creditor, and the sheriff, on receiving a sufficient indemnity, is to sue in his own name. (A) Bills and notes may be taken under an extent. A bill, check or note, or an indorsement thereon, made before the late act, 1 Vict. c. 26, may be a testamentary instrument. A testator gave three checks, at different times, to a lady, and on the corresponding parts of the check-book were found entries by him to the effect that they were given by him to make provision for her in case of his death. The checks were held to be testamentary instruments, giving cumulative legacies. (^) But parol evidence is inadmissible to show that an instrument was only to be payable in case of the testator's death. (»i) An indorsement on a note, as "I give this note to C. D.," may be testamentary.(w)(l) A bill or promissory note may ^in some cases be a declaration of trust(o). ming V. Bailey 6 Bing. 363 (19 B. 0. L. R.) ; 4 Moo. & P. 36, s. c; Edwards v. Cooper, 11 Q. B. 33 (63 B. 0. h. R.). See Chap. xxxv. on Bankruptcy. (k) See Chap. xl. on Transfer. {I)- Bartholomew v. Henley, 3 Phill. 317. (m) Woodbridge v. Spooner, 3 B. & Aid. 233 ; 1 Chit. R. 661, s. o._ {n) Cfaaworth v. Beech, 4 Yes. 565. For the circumstances under which bills and notes will pass under a will, or as a donatio mortis caus&, see Chap. xi. on transfer. (0) Murray v. Glasse, 23 L. J., Ch. 126. (1) The payee of a note wrote upon the back of it as follows : " If I am not living at the time Ihisis paid, I order the contents to be paid to A. B." He died before the note was paid. The indorsement was held to be entitled to probate as a will. Hunt V. Hunt, 4 New Hamp. 434. When a promissory note was made in this form : " on demand, after my decease, I promise to pay to B., or order," which was deliv- ered to the payee as evidence of the maker's indebtedness to him, it was held that this instrument was not of a testamentary character, to be proved as a will, but was a promissory note, negotiable and irrevocable. Bristol v. Warner, 19 Conn. 1 72 OF A PKOMISSOKY NOTE. [*5] ♦CHAPTER II. OF A PROMISSORY NOTE. WHAT IT IS 5 HOW OONSIDKBED AT COMMON LAW AND WHAT BY STATUTE . . 5 PEOMISSOBT BOTES MADE OUT OP ENGLAND 6 FOKM OIT A NOTE .... 6 NOTE BY A MAN TO HIMSELF . . 6 NOTE BY A MAN TO HIMSELF AND ANOTBEB 7 NOTES PAYABLE BY INSTALMENTS . 1 JOINT AND SEVERAL NOTES . . 7 WHERE THERE IS FBINCIPAL AND SURETY 8 CONTRIBUTION BETWEEN JOINT MAKERS 8 BANE NOTES 9 BANK OF ENGLAND NOTES ... 9 WHEN BANE OF ENGLAND NOTES ARE A LEGAL TENDER . . . .10 COUNTRY BANK NOTES . . .10 WHEN COUNTRY BANE NOTES ARE A LEGAL TENDER . . . .10 WHEN MONEY BAD AND RECEIVED WILL LIE FOR THEM . . . .10 OF THE OONTHACnNS WORDS IN A PROMISSORY NOTE . . .10 OTHER MATTERS CONTAINED IN A NOTE 12* A PKOMissoRY note(a), or, as it is frequently called, a note of hand, is an absolute(6) promise in writing, signed but not sealed, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named or designated,(c) or to his order, or to the bearer, (d)(1) ' (a) As to notes in an irregular form, see post, Chap. vii. (b) As to conditional instruments, see post. Chap. vii. (c) See Storm v. Stirling, 3 B. & B. 842 ; Cowie v. Stirling, 6 E. & B. 333 (88 B. C. L. R.), and Chapters vi. and vii. {d) 2 Bla. Com. 467. (1) The essentials of a negotiable promissory note are that it must be payable at all events, not dependent on any contingency nor payable out of a particular fund ; ,and that it must be for the payment of money only, and not for the performance of any other thing or in the alternative. Arnold v. Bock River Co., 5 Duer, 207 ; Gor- don V. Bundlett, 8 Foster, 435; Salinas v. Wright, 11 Texas, 572. An agreement to pay money ninety days after the happening of two events, one of which may never happen, is not a promissory note. Sachett v. Palmer, 25 Barbour, 179. An instrument promising to pay money or a contingency is not a negotiable promissory note. Loftus v. Clarke, 1 Milton, 310 ; Downer v. Tucker, 31 Vermont, 204 ; Dilley V. Van Wic, 6 Wisconsin, 209. A promissory note, in part for a sum certain and in part for a contingent sum, is not negotiable. Palmer v. T^ard, 6 Gray, 340. A conditional note must be declared on as a special agreement, and the plaintiff mus prove performance of the condition. Kennedy v. Murdick, Harrington, 263. So a note promising to pay a sum of money for the hire of a negro, " said negro to be furnished with the usual quantify of clothing." Barnes v. Gorman, 9 Richardson (Law), 297. In the case of Ogden v. Bacon, 8 Johns. 685, A. gave B. a promissory QFAPROMISSORTNOTB. 73 The person who signs the note is called the maker. The in- note payable to B. or order, and at the same time made an indorsement on the note, that it was to be delivered to B. in consideration of a judgment against 0., to be assigned to A. by B. ; it was held by the court that this was a promissory note, and might be declared on as such notwithstanding the indorsement. These words in a promissory note, " which when paid will be in full of" a certain judgment, does not change the nature of the undertaking. Ellett v. Britton, 6 Texas, 229. The char- acter of a negotiable note is not taken away by the fact that it is secured by a mortgage, but the latter will pass with it as security, as an incident of its transfer. Croft V. Bunster, 9 Wisconsin, 503. A note payable to order, on a day certain without a contingency, and purporting to be according to the condition of a mortgage, the terms of the mortgage corresponding with those of the note, is negotiable. Littlefield v. Hodge, 6 Michigan, 326. The recital of the consideration in negotiable paper does not affect it. Ryland v. Brown, 2 Head. 270. So also provisions in a note as to collaterals do not defeat its negotiability. Enipper v. Chase, 7 Clarke, 145, In general a note payable otherwise than iu money is not a good note within the statute. Thus when made payable in "current funds." McCartney v. Smalley, 11 Iowa, 85 ; Rindskoff v. Barrett, Ibid. 172 ; Wright v. Hart's admrs., 8 Wright, 454 ; Conwell V. Pumphrey, 9 Indiana, 135 ; Phoenix Ins. Co. v. Allen, 11 Michigan, 501 ; Marine Bank r. Rushmore, 28 Illinois, 463. Notes payable in merchandise or articles other than money are very common, but the current of decisions is against their negotiability or having the other qualities of mercantile paper. Tibbets v. Gerrish, 5 Foster, 41 ; Gaulden v. Sheeker, 24 Georgia, 438. But see Rogers v. Maxwell, 4 Indiana, 243. A promissory note payable to bearer may be transferred by delivery so that the holder may maintain an action thereon in his own name, though it be not payable in money. Hopkins v. Seymour, 10 Texas, 202. A, promise to pay a certain sum at 4 months " or in goods on demand" was held a promissory note. Hostatter v. Wilson, 36 Barbour, 307. The note of a railroad company with interest coupons, redeemable at maturity in money or at a certain time before maturity in stock at the holder's election is a negotiable note. Hodges v. Shuler, 22 New York, 114. An undertaking by a railroad to pay a certain sum to A. or order, at a certain time, with a proviso that upon surrender of the note before that time, the company should issue shares of stock for it, held to be a pronaissory note, and the indorser liable. Hodges v. Shuler, 24 Barbour, 68. The current rate of exchange must be proved by extrinsic evidence ; therefore a promise to pay a sum certain, with the current rate of exchange added, is not a ne- gotiable note but a special promise and requires proof of consideration. Lowe v. Bliss, 24 Illinois, 168. Contra. Leggett v. Jones, 11 Wisconsin, 124. See Smith v Kendall, 9 A note prom- ising to pay when the maker can make it convenient, with interest till paid, is a valid promise to pay in a reasonable time. Lewis v. Tipton, 10 Ohio (N. S.), 88. A written promise to pay a sum certain, absolutely and unconditionally, at a time specified on its face, is a good promissory note, although a memorandum at the foot of it states a different mode in which it may be discharged. Pool v. McCrary, 1 Kelly, 319. A certificate of deposit of a certain sum of money, payable at a future day, with interest till due, for the use of the person named, and to his order, is a negotiable promissory note. Miller v. Austin, 13 Howard, S. C. Rep. 215 ; Carey v. McBwugald, 1 Georgia, 84; Lowe v. Murphy, 9 Ibid. 338. There are conflicting cases as to whether certificates of deposit are or are not promissory notes. Patterson v. Poindexter, 6 Watts & Serg. 227 ; Lebanon Bank v. Mangan, 4 Casey, 452 ; Wilton v. Adams, 4 California, 37 ; Fells Point Co. v. Weedon, 18 Maryland, 320; Beau v. Briggs, 1 Clarke, 488 ; Austin v. Miller, 5 McLean, 153; Laughlin v. Marshall, 19 Illinois, 390 ; Howe v. Hartness, 11 Ohio, 449. So as to the question whether coupons and coupon bonds are negotiable. See Myers v. York R. R. Co., 43 Maine, 232 ; Morris Canal v. Fisher, 1 Stockton, 667 ; Carr v. Le Fevre, 3 Casey, 413 ; Diamond v. Lawrence Co., 1 Wright, 353 ; Commonwealth V. Commis'sioners, Ibid. 237. (1) It is important to remember this remark. The maker of a note is sometimes called the drawer, but inaccurately. It has a tendency to confound the case of the maker of a note with that of the drawer of a bill. The maker of a note stands in the same position as the acceptor of a bill, liable primarily and at all events, while the drawer of a bill is only liable upon non-acceptance or non-payment and due notice. The indorser of a note is sajd to be a drawer of a bill upon the maker ac- cepted in advance, in favor of the indorsee, if the indorsement be special, or in favor of the bearer, if the indorsement is in blank. The position of the drawer of a check on a bank or banker is somewhat peculiar, as he is held to be primarily liable as principal debtor, unless by the failure to present, he has been injured. Delivery is necessary to the complete execution of a note ; if the payee obtain possession by fraud, he cannot maintain an action thereon. Carter v. McClintook 29 Missouri, 464. OP A PKOMISSORT NOTE. 75 of exchange, and enables the holder to bring his action on the note itself. Under the statute of Anne, foreign notes maybe declared upon and indorsed. "They are," observes the Court of K. B., "within the words and the spirit of the Act ; the words are 'all notes.' The Act was made for the advancement of trade, and ought, therefore, to receive a liberal construction. It is for the advantage of com- merce that foreign, as well as inland bills, should be negoti- able. "(/) It has been suggested to be a doubtful point, whether this statute makes English notes assignable abroad,(^) but it is now decided that it does, (A) No precise form of words is essential to the validity either of a bill of exchange, or of a promissory note.(i)(l) A note cannot be made by a man to himself without more. But if made to himself, or order, and indorsed in blank, it becomes a note payable to bearer ;(A) and if specially indorsed it becomes a note payable to the indorsee or order.(Z)(2) (/) Milne v. Graham, 1 B. & 0. 192 (8 E. C. L. E.) ; 2D. &R. 294, s. 0. ; Houriet V. Morris, 3 Camp. 303 ; Bentley v. Northonse, 1 M. & M. 66. But it was at one time thought that the Act did not extend to notes made abroad. Carr v. Shaw, H. T. 39 Geo. 3 ; Bay. 23. {g) De la Chaumetle t. The Bank of England, 9 B. & C. 208 (17 E. C. L. R.). (A) S. C, 2 B. & Ad. 385 (22 E. C. L. R.). As to the transfer abroad of notes made abroad, and English notes, see the Chapter on Foreign Sills and Ibrdgn Law. (i) Chadwick v. Allan, Stra. 706 ; Peto v. Reynolds, 9 Bxch. 410 ; Reynolds v. Peto, 11 Bxch. 41 Si (A) Browne v. De Winton, 17 L. J., C. P. 281 ; 6 0. B. 336 (60 E. C. L. R.), a. 0. {I) Gay V. Lander, 17 L. J., C. P. 286; 6 c' B. 336 (60 E. 0. L. R.). See also Wood V. Mytton, 10 Q. B. 805 (59 E. C. L. R.), and Plight v. Maclean, 16 M. & W. 51. So in America it has been held that an instrument payable to the maker and indorsed by him is a promissory note. Maldow v. Caldwell, 7 Missouri, 563. And see 55 Geo. 3, c. 184, Sched. pt. i. (1) An instrument in form of a bond, but without seal, is a note. Woodward t. Genet, 2 Hilton, 526. A note in pencil is valid while legible. Reed v. Rourk, 14 Texas, 329. (2) A note made payable to the maker or order. Miller v. Weeks, 22 Penna. Stat. Eep. 89, and indorsed by him, is a promissory note, and maybe declared on as such by the holder, without averring a consideration. Muldrow v. Caldwell, 7 Missourii 563. A promissory note make payable to the maker's own order, and by him in- dorsed and delivered, is in legal effect only an ordinary promissory note. The first indorsee does not take a derivative, but a primitive title. Scull v. Edwards, 8. English, 24. When there is any ambiguity or uncertainty in the terms of the in- strument, it may, especially against the party negotiating or making it, be so construed as to give effect to it according to the presumed intention of the parties ; and there-. 76 OF A PROMISBOHT NOTE. A note by which the defendant and four other persons promised to pay 1501. "to our and each of our order," and indorsed by de- fendant alone, was held good.(m) A note payable to the maker's order, and afterwards indorsed, should be declared on and stamped according to its legal effect.(M) *Nor can there be a note by the maker to himself and r*7i •- J another man.(o) Nor a joint note by the maker and others to himself. But such a note, if joint and several, may be valid at the suit of the, payee, as to the several contracts of his co- makers. (^) A note may be made payable by instalments, and yet be within the statute of 3 & 4 Anne, c. 9.{q) Days of grace are allowed on each instalment.C»')(l.) (m) Absolon v. Marks, 11 Q. B. 19 (63 E. 0. L. R.).. (n) Hooper v. Williams, 2 Exch. 13 ; Flight v. Maclean, 16 M. & W. 51. (0) See Moffatt T. Van Milligen, 2 B. & P. 124, n. ; Mainwaring t. Newman, Ibid. 120. See Teague T Hubbard, 8 "B. & C. 345 (15 E. G. L. R.). But indorsement may remove the difiBculty. Qucere as to the efiFeet of survivorship. {p) Beecham v. Smith, 2T L. J., Q. B. 257 ; E. B. & E. 442 (96 E. C. L. R.), s. c. (yyOrridge V. Sherbofn, 11 M. & W. 374; 12 L. J., Exch. 313, s. e. (r) Ibid. fore, where a note wag drawn in these terms : " Borrowed of J. S. fifty dollars, which I promise never to pay," it was held the word never might be rejected. So where an Instrument was in the form of a note, drawn in favor of the maker, and indorsed by him, but addressed to a third person, and the name of that third person written across the face of it, it was held by the Court of King's Bench, to be good as a pro- missory note. "It is an instrumeutj" said Lord Tenterden, " of an ambiguous nature, and I think that where li party issues an instrument of .an ambiguous nature, the law ought to allow the holder, at bis option, to treat it, either as a promissory note, or a bill of exchange." Edis v. Bury, 6 Barn. & Oressw. 433 ; 13 Eng. Com. Law Bep. 227. A promissory note, signed by several persons, and payable to one of their number or his order, cannot, in the name of the payee, be enforced at law, as a joint promise against all the signers. But when such a note is indorsed to a third person, it immediately becomes operative as a valid contract, from the date of the transfer, and may be enforced by a joint action against all the makers in the name of the indorsee. Heywood v. Wright, 14 New Hamp. 73 ; Rambo v. Metz, 5 Strobhart, 108. And see Muldrow v. Caldwell, 7 Missouri, 563. A promise in writing by one firm, to pay a sum certain, on a specified day, to another firm, both having a common partner, is not a promissory note until assigned ; when assigned by the latter firm, the assignee must be regarded, as between himself and the makers, as the real payee, and may maintain an action in his own name, against the makers, Murdockv. Caruthers, 21 Alabama, 785. (1) Coffin V. Loring, 5 Allen, 153. A premium note given to an insurance com- pany, promising to pay in such portions a;id at such times as the directors may require, is a promissory note. Washington Ins. Co v. Miller, 26 Vermont, 77. OP A PEOMISSOKY NOTE. 77 It is conceived that presentment and notice of dishonor is required when each instalment falls due ; but that laches as to one instalment in ordinary cases only discharges an indorser as to that one. And that a note payable by instalments cannot be indorsed over for less than the entire sum due upon it. A note payable by instalments is within the statute, although it contain a provision that, on failure of payment of one instalment, the whole debt is to become payable, (s) A note by two or more makers may be either joint only, or joint and several. A note signed by more than one person and begin- ning, "We promise," &c., is a joint note only. A joint and several note usually expresses that the makers jointly and severally promise. But a note signed by more than ohe person, and begin- ning, "I promise," &c., is several as well as jomt.{t) So, a note beginning in the singular, " I promise," and signed by one partner for his co-partners, is the joint note of all,(M), and has been held to be also the several note of the signing partner. (t;)(l) (s) Carlon t. Kenealy, 12 M. & W. 139. (() March t. Ward, Peake's Rep. 130; Olerk t. Blackstock, Holt, N. P. 0. 474 (3 E. C. L. E.). So it has been held in America. Hemmenway v. Stone, 7 Mass. 58; Barnett v. Skinner, 2 Bailey, 88. So a bond in the singular number, executed by several, is several as well as joint. Sayer v. Chayter, 1 Lutw. 695 ; Galway v. Mathew, 1 Camp 403 ; 10 East, 264, s. o. As to a joint or joint and several warrant of attorney, see Dalrymple v. Fraaer, 15 L. J;, 0. P. 193 ; 2 0. B. 698 (52 E. C. L. R.), s. o. (u) Doty V Smith, 11 Johnson's American Rep. 543. («) Hall V. Smith, 1 B. & C. 407 (8 E. 0. L. E.) | 2D. & R. 584; Lord Galway v. Mathew, 1 Camp. 403. But Hall v. Smith seems to be overruled in Ex parte Buck- ley, 14 M. k W. 475 ;.15 L. J., Bkcy. 3, s. 0. See also Maclae v. Sutherland, 3 B. & B. 1 (77 E. C. L. R.). (1) A note in the form, "I promise," &c., subscribed by twc persons, is a joint and several note. Hemmenway v. Stone, 7 Mass. 58 ; Barnet v. Skinner, 2 Bailey, 88 ; Partridge v. Calby, 19 Barbour, S. C. Rep. 248 ; Ladd v. Baker, 6 Poster, 76. Persons who sign their names to a note will be presumed to be joint makers in the absence of anything to the contrary on the face of the note. Johnson v. King, 20 Alabama, 270; Chandler v. Ruddjck, 1 Carter (Indiana), 391. If one of two joint debtors, not co-partners, give a note for their debt, signed in their joint names, a ratification by the other renders the note valid against both;. and a subsequent promise by such other debtor to pay the note, made with a full knowledge of the facts,' is a. sufficient ratificfition. Waite v. Poster, 33 Maine, 424. When a note is made by two persons, which in tetms is joint only, on the death of one of the ihakers, the surviving maker is only liable on it, unless it appears by direct proof, or the facts of the case warrant the inference, that it should be joint and several. Then the representatives of the deceased maker are liable. Yorks v. Peck, 14 Bar- 78 OF A PROMISSORY NOTE. *A joint and several note, though on one piece of paper, L -I comprises, in reality and in legal effect, several notes.(w) Thus, if A., B. and C. join in making a joint and several promis- sory note, there are, in effect, four notes. There is the joint note, of the three makers, and there are also the several notes of each of the three.(a;)(l) The joint note may be valid although the (w) Fletcher \r. Dyte, 2 T. R. 6, Ashurst, J. ; Owen v. Wilkinson, 28 L. J., 0. P. 3 ; 5 C. B., N. S. 526 (94 E. C. L. R.), s. 0. (x) See the observations of Parke, B., in King v. Hoare, 13 M. & W. 505; Bnl- beck V. Jones, 5 Jur., N. S. 1317 ; Beecham v. Smith, B. B. & E. 442 (96 B. 0. L. R.). hour, 644. We, or either of us, is a joint and several note. Poguev. Clark, 25 Illinois, Harvey v. Irvine, 11 Iowa, 82. A note apparently intended to be joint and several, binds one promiser who puts it in circulation with only his own signature. Dickerson V. Burke, 25 Georgia, 225: Though a note be made in the singular number, one who signs after the maker, adding the word "surety"'- after his name, is thereby bound' as a joint and several maker. Dart v. Sherwood, 1 Wisconsin, 523. (1) What is thus stated broadly, certainly requires to be received with some •modification. A joint and several note by A., B. and 0. is not the separate note of each to all intents and purposes. ' The payee could not indorse A.'s note to one, B.'s note to another, and C.'s note to a third person ; nor could he even make a separate transfer of the proportionate liability of each maker, without the consent of all three. Their consent mightmake a new special contract on the part of each to pay the assignee of each his proportion. In regard to the remedy, there is also an important distinction to be borne in mind. The holder may sue all the makers jointly, or each severally, but he cannot do both. As to remedy, then, there are not four notes, but either one or three, at the election of the holder. A suit against the three jointly would preclude an action against each — severally — and e contra. BuUer, J., in Streatfield v. Halliday, 3 Term. Rep. '782. The case of King and an- other V. Hoare, 13 MeesoD & Welsby, 494, which is relied on as the authority for the doctrine of the text, decides merely that a judgment (without satisfaction) recovered against one of two joint debtors is a bar to an action against the other. Secus when the debt is joint and several. " The distinction," says Baron Parke, " between the case of a joint and several contract is ^ery clear. It is argued that each party to a joint contract is severally liable ; abd so he is in one sense, that if sued separately, and he does not plead in abatement, he is liable to pay the entire debt; but he is not severally liable, in the same sense, as he is on a joint and several bond, which instrument, though on one piece of parchment or paper, in effect comprises the joint bond of all, and the several bonds of each of the obligors, and gives different remedies to the obligee." This is very true, but can hardly be said to support the position, that such a bond is in legal effect four distinct bonds. It has been decided in Ohio, that, in cases of a joint and several note, the pro- misors are to be deemed, quoad hoc, as partners, and » demand upon one is a demand upon all. Harris v. Clark, 10 Ohio, 5. Judge Story, indeed, seems inclined to the opinion that, even in the case of a joint note by several persons not partners, there must be a separate demand or due diligence shown in regard to each maker. Story on Notes, § 239, 255. However this may be, it is plain that it would not be true, as stated in the text, that a joint and several note by three, is in effect OF A PROMISSORY NOTE. 79 several notes are void.(^) Yet, for some purposes, it is still one contract. Thus, an alteration which affects the liability of one maker vitiates the entire instrument. (2) Where a note is on its face joint, or joint and several, it is con- ceived that evidejice to show that one maker is surety for the other,(a) is inadmissible at law, if the question arise between the creditor and the surety; but evidence to that effect has been received.(5)(2) Where, however, the question arises between the principal debtor and the sureties in an action for indemnity or contribution, such evidence is admissible. Joint debtors equally liable, as between themselves (not being general partners)^(e) are severally entitled at law to contribution, (c?) (y) M'Clae v. Sutherland, 3 E. & B. 1 (77 B. C. L. R.). (z) Gardner t. Walsh, 5 E. & B. 91 (85 E. 0. L. R.). {a) Price v. Edmunds, 10 B. & 0. 578 (21 E. 0. L. R.); Strong v. Poster, 17 0. B. 201 (84 E. 0. L. R.) ; but seeManley v. Boycott, 2 B. & B. 46 (75 B. C. L. R.). (6) Garrett v. Jull, S. N. P. 377 ; and see the observations of Williams, J., in Reynolds t. Wheeler, 30 L. J., C. P. 351 ; 10 0. B., N. S. 561 (100 E. 0. L. R.), s. 0. ; Hall v. Wilcos, 1 M. & Rob. 58. The admission of such evidence seems to contravene the general rule of law, that parol evidence is inadmissible to vary or explain a written contract Where the indorsee sues, another objection interposes, ■ that the indorsee would be affected by a contract of which he had no notice. Besides, from the case of Fentum v. Pococke, 5 Taunt. 192 (1 E. G. L. R.) ; 1 Marsh. 14, s. 0., which has been recognized as law ever since it was decided, this general principle seems to result, that parties to a negotiable security shall be held *o the consequences of the characters which they severally assume on the face of the instrument. Indeed, in Stron| v. Foster, 17 C. B. 201 (84 E. C. L. R.), the Court of 0. P., relying on some expressions of Lord Cottenham in Holtier v. Byre, 9 01. & F. 45, seemed to thinis the rule the^same in equity as at law. But the case of Strong V. Foster, may be considered as overruled, see post, Chap, xviii. And see Perfect v. Musgrave, 6 Price 111, and Chap, xviii. on Principal and Surety. (c) Sadler v. Nixon, 5 B. & Ad. 936 (27 E. 0. L. R.). \d) ^prnell v. Minot, 4 Moore, 340 ; Button v. Byre, 6 Taunt. 289 (1 E. C. L. R.) ; Holmes v. Williamson, 6 M. & S. 158 ; Edgar v. Knapp, 6 Scott's N. R. 707; 5 M. & G. 753 (44 E. 0. L. R.), s. c. four notes. If a demand lipon one is sufficient, it is because the holder has a right to elect, to consider it a joint note ; or if demand on all three is necessary, it is still in legal effect but one note, otherwise a different result would follow. (2) Parol evidence is admissible to show the intention of the parties to a note, at the time the contract was entered into, with regard to their several liabilitii s among themselves, and the relations which they were to bear to the note. Branch Bank v. Coleman, 20 Alabama, 140; Robison v. Lyle, 10 Barb. Sup. Ot. 512; Smith v. Soak, 3 Texas, 215. It would clearly be inadmissible as against a bonS fide holder without notice. . 80 01 A PEOMISSORT NOTE. even against the executor of a *coritributory.(e) Therefore, *- -■ one of several joint, or joint and several makers of a note, who pays the whole, may maintain an action against another for contribution ;(/) and he may now, on giving a proper indemnity, sue his companion on the instrument in the creditor's name, and his own payment shall not be pleadable in bar.(^) A bank note is a promissory note, made by a banker, payable to bearer on demand, and intended to circulate as money. (A) The term bank note is sometimes used indiscriminately for the note of a country bank, or the note of the Governor and Company of the Bank of England ; but, in law books, a bank note is com- monly taken to mean a Bank of England note. "Bank notes," says Lord Mansfield, " are not goods, not securities nor documents for debts, nor are they so esteemed ; but are treated as money, as cash, in the ordinary course and transactions of business, by the general consent of mankind, which gives them the credit and cur- rency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin that is used in common payments as money or cash. They pass by a will which bequeaths all the testator's money or cash, and are never considered as securities for money, but as money itself. On pay- ment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. So, on bankruptcies, they cannot be followed as identical, and distinguish- able from money, but are always considered as money" or cash."(i) Like money, they cannot, at common law, be taken in execu- tion, (y) but may now be taken by virtue of the stat. 1 & 2 Vict. c. no, s. 12.(1) ' (e) Prior v. Henbrow, 8 M. & W. 883. {/) As to contribution between principal and surety, and between co-sureHies, see the Chapter on Principal and Surety. [g) 19 and 20 Vict. c. 97, s. 5; Batchelor v. Lawrence,. 30 L. J., C. P. 39 ; 9 C. B., N. S. 543 (89 E. 0. L. R.), s. 0. (A) As to the power of the Bank of England and other banks to issue promissory notes, see the Chapter on the Capacity of Parties to a Bill or Note. (i) Miller v. Race, 1 Burr. 452 ; Fleming v. Brooke, 1 Sch. & Lefr. 318 ; 11 Vea. 662 ; Drury v. Smith, 1 P. Wms. 404 ; Miller v. Miller, 3 P. Wms. 356 ; Ambler, 68. {j) Francis v. Nash, Rep. temp. Hardwicke, 53 ; Knight v. Griddle, 9 East, 48 ; Armistaad v. Philpot, 1 Dongl. 219; Fieldhouse v. Croft, 4 East, 510. (1) For every purpose, in the ordinary transaction of business, except that of a legal tender, bank notes are considered as money. Edwards v. Morris, 1 Hammond, OF A PROMISSORY NOTE. 81 *Gold coin was formerly the only legal tender above a cer- r^. «-, tain amount ;(jfc) bank notes were, nevertheless, a good tender, unless objected to on that account ;(Z) but it is enacted, by 3 & 4 Will. 4, c. 98, s. 6, that Bank of England notes shall be a legal tender for all sums above 51., except at the Bank of England or its branches. Formerly, money was kept with goldsmiths, who, about the year 1670, introduced, as receipts for deposits, promissory notes pay- able to bearer, called Goldsmiths' Notes ; the assignable quality of these notes was strenuously denied by Lord Chief Justice Holt, in the reign of Queen Anne. At length, the stat. 3 & 4 Anne, c. 9, made them assignable, like bills. Checks on bankers have now superseded goldsmiths' notes, in London ; but bankers' cash notes, ^ or, as they were formerly called, shop notes, and country bank notes, are now what goldsmiths' notes were formerly. (1) Country bank notes are also a legal tender, unless objected to, and are considered as cash.(m) (k) 56 Geo. 3, c. 68, s. 11. (l) Wright v. Eeed, 3 T. E. 554 ; Grigby v. Oakes, 2 B. &. P. 526 ; Brown v. Saul, 4 Esp. 2S7. (m) Chitty, 351, 2; Owenson v. Morse, 1 T. E. 64 ; Ward T. Evans, 2 Ld Eaym. 524; Bradley v. Hunt, 5 Gill & Johns. 58 ; Morrill v. Brown, 15 Pick. 177 ; Pierson v. Wallace, 2 English, 282. Bank^o«< notes, being intended to circulate after they are due, like other bank notes, are not subject to the rules applicable to ordinary promissory notes, but are assimilated to ordinary bank notes. Fulton Bank v. Phoenix Bank, 1 Hall, 577. It seems that a judgment on a negotiable note, passing from hand to hand, as a bank note, prevents any further use of it as such by the holder. Lockhart v. United States Bank, 2 Ashmead, 405. A note issued by a bank, in violation of its charter, or in contravention of the provisions of a public law in force at the time of the adoption of its charter, is void ab initio, and no action can be maintained on such note by the indorsee against the indorser. Boot v. Wal- lace, 4 McLean, 8 ; Davis v. Bank, Ibid. 387. The notes issued by a bank organized under an unconstitutional law are void, and constitute no consideration for a prom- issory note. Skinner v. Bearing, 2 Carter (Ind.), 558. (1) "Goldsmiths' or bankers' notes, to which checks have been likened, are seldom now used, bat have been superseded by the introduction of checks, which, on account of their being payable on demand, are considered as cash, and, like bankers' checks, are transferable by delivery, and are governed by the same laws and rules us bills of exchange. So long ago as the time of Lord Holt (Ld. Eaym. 744, 1 Salk. 133) goldsmiths' bills were held to be governed by the rules of bills of exchange, and if the money be demanded in a reasonable time and not paid, it will charge him who gave the bill." Per Kent, J., in Cruger v. Armstrong, 3 Johns. Gas. 5. 6 82 OP A PROMISSORY NOTE. Assumpsit for money had and received will lie for country bank notes and checks which have been treated as money, (m) but not otherwise ;(o) for it has been held, that an action for money had and received will not lie against the finder of lost notes unless they have beeli turned into money, or treated by the defendants as money.(l) No precise words of contract are essential in a promissory note, provided they amount in legal effect to an unconditional promise to pay. Thus, "I promise to account with A. B. or order for 50Z,, value received by me," has been held a good note within the stat- ute.(p) So, "I do acknowledge myself to be indebted to A. in lOQL, to be paid on demand, for value received," was, after solemn argument, held to be a good note within the statute, the words " to he paid" amounting to a promise to pay; the Court observing, r*in **'^** *^^ same words in a lease would amount to a cove- nant to pay rent.(g') And where, for an executed con- 928; Tiley t. Coursier, K. B. 1817 ; overruling Mills v. Stafford, Peake, N. P. 240, n.; Lockyer t. Jones, Peake, N. P. 240, n. ; Polglass t. Oliver, 2 C. & J. 15 ; 2 Tyr. 89, S. 0. (n) Pickard v. Bankes, 13 East, 20 ; Spratt v. Hobhonse, 4 Bing. 173 (13 E. C. L. R.) ; 12 Moo. 395, s. c. (0) Noyes v. Price, Chitty, 354 (18 E. C. L. K). (p) Morris v. Lee, 2 Ld. Raym. 1396 ; 1 Stra. 629 ; 8 Mod. 362, B. c. (j) Casborne v. Dutton, S. N. P. 401 ; Brooks v. Elkins, 2 M. & W. 74. But in Home V. Redfearn, (4 Bing. N. C. 433 (33 E. C. L. R.) ; 6 Scott, 260, s. c), the following instrument was held not to be a promissory note : — " I have received the 201. which I borrowed of you, and I have to be accountable for the same sum . with interest." In Jarvis v. Wilkins, 7 M. & W. 410, the following instrument was held to be a guarantie, and not a note: — "Sept. 11, 1839. I undertake to pay to Mr. Robert (1) Bank notes and any other property received as money will support the action, the same as if money itself had been received. Mason v. Waite, 17 Mass. 560; Ainslie v. Wilson, 7 Cowen, 662 ; Arms v. Ashley, 4 Pick. 74 ; Murray v. Pate, 6 Dana, 335; Kellogg v. Budling,-7 Howard (Miss.), 340; Houx v. RufuU, 10 Mis- souri, 246 ; Muir V. Rand, 2 Carter (Indiana), 291. Negotiable notes received by defendant are often regarded as money., Floyd v. Day, 3 Mass. 405 ; Hemmenway v. Bradford, 14 Mass. 122 ; Willie v. Green, 2 N. Hamp. 333 ; contra, Mercer v. Tolen, Antbon, 119. Positive evidence is not, in all cases, necessary, that the defendant has received money belonging to the plaintiff; but when, from the facts proved, it is a fair presumption that he has received it, the action is maintainable. Tuttle V. Mayo, 7 Johns. 132 ; Hatten v. Robinson, 4 Blackford, 479 ; Haskins v. Dunham, Anthon, 81 ; Hutchinson v. Phillips, B English, 270 ; Mair v. Rand, 2 Carter (In- diana), 291. OF A PKOMISSORY NOTE. 83 sideration, a note was given, expressed to be "for 201. borrowed and received," but at the end were the words, " which I promise never to pay," Lord Macclesfield rejected the word never.{r) For a contract ought to be expounded in that sense in which the party- making it apprehended that the other party understood it. If there be no words amounting to a promise, the instrument is merely evidence of a debt, and may be received as such be- tween the original parties. (a) Such is the common memorandum I U.(«) *A promissory note is not the less a note, because it con- r:|.i9T tains a recital that the maker has deposited title deeds Jarvis the sum of 61. is. for a suit of clothes ordered by Dauiel Page." The Court observed that the expression " ordered" showed that the consideration was execu- tory. " I, R. J. M., owe Mrs. E. the sum of 61., which is to be paid by instalments, for rent. Signed, B. J. M." Held not to be a promissory note, as no time was stipu- lated for the payment of the instalments. Mofifatt v. Edwards, 1 Car. & M. 16 (14 E. C. L. R.). ■ " Memo. Mr. Sibree has this day deposited with me 5002. on the sale of 10,3002. 32. per cent. Spanish, to be returned on demand." Held not to be a promissory note. Sibree v. Tripp, 15 M. & W. 23. "Borrowed of Mr. J. White the sum of 2002. to account for on behalf of the Alli- ance Club at two months' notice if required," was held not to be a note. White v. North, 3 Exch. Bep. 689. " Borrowed, this day, of Mr. John Hyne, Stonehouse, the sum of 1002. for one or two months; check 1002. on the Naval Bank," was held to be a simple acknowl- edgment, and nt)t a note or agreement. Hyne v. Dewdney, 21 L. J., Q. B. 278. The following instrument was held to be a promissory note : — " John Mason, 14th Feb. 1836, borrowed of Mary Ann Mason, his sister, the sum of 142. in cash, a loan, in promise of payment of which I am truly! thankful for." Ellis V. Mason, 1 Dowl. P. C. 598. A letter in this form is a promissory note : — " Gentlemen, I have received the im- perfect books, which, together with the costs overpaid on the settlement of your, account, amounts to 802. 7»., which sum I will pay you within two years from this date. I am, Grentlemen, your obedient servant, " Thos. Williams." Wheatley v. Williams, 1 M. & W. 533. A promise to pay or cause to be paid is a good note. Dixon v. Nuttal, 6 0. & P. 320 (25 E. C. L. E.) ; 1 C, M. & B. 307. (r) 2 Atkyns, 32 ; Allen v. Mawson, 4 Camp. 115 ; Bayley, 5 Ed. 5. («) Wayman v. Bend, 1 Camp. 175. ^ (t) Israel v. Israel, 1 Camp. 499 ; Fisher v. Leslie, 1 Esp. 426 ; Childers v. Boul- nois, D. & B., N. P. 8. But see Guy v. Harris, Chit. 526, where Lord Eldon held such an instrument to be a promissory note. But it clearly is not such at this day. See Tomkins v. Ashby, 6 B. & C. 541 (13 E. C. L. B.) ; 9 D. & B. 543 ; 1 M. & M. 32, s. 0. See further on this subject Chap. iv. on an I U. 84 OF A CHECK ON A BANKER. ■with the payee as a collateral security,(M)(l) or hecause it refers to an agreement where it does not appear that the agreement quali- fies the note.('w) But an agreement to give further security in future would invalidate the instrument as a promissory note.(a:) [*13] *CHAPTER HI. OP A CHECK ON A BANKER. WHAT IHSTRTJMENTS ARE CHECKS . 13 BEQDISITES TO BEING CHECKS WITHIN THE EXEMPTION OF THE GENERAL STAMP ACT 14 EPPECT AND PENALTY OP OMITTING A STAMP ON CHECK, WHERE NECESSARY 16 ALTERATION OF THE LAW BY RECENT 'acts IS AMOUNT FOR WHICH A CHECK MAY BE ERAWN HOW TRANSFERRED banker's OBLIGATION TO PAY TIME OP PRESENTMENT AS BETWEEN HOLDER AND DRAWEE AS BETWEEN THE HOLDER AND HIS OWN BANKER 20 WHERE THE PARTIES DO NOT LIVE IN THE SAME PLACE 20 A# BETWEEN THE BOLDBEAND A TRANS- .FEREEK WHO IS NOT A DRAWER . 20 W9AT AMOUNTS TO AN ENGAGEMENT TO PAY A CHECK 21 CROSSED CHECKS . . • ■ ^1 STATUTE RELATING TO CROSSED CHECKS 22 WHAT A CHECK IS EVIDENCE OF . .23 WHEN IT AMOCNTS TO PAYMENT . . 23 WHEN IT MAY BE TAKEN IN PAYMENT . 24 WHETHER HOLDER BE ASSIGNEE OP A CHOSE IN ACTION . . . .24 EFFECT OP drawer's DEATH . . 24 OF FRAUD IN FILLING UP CHECKS . 24 BRANCH BANKS 25 WHEN SEVERAL MUST JOIN IN DRAW- ING CHECK 25 PROM WHAT PERIOD CUSTOMERS DE- BITED 25 CHECKS NOT PBOTESTABLB . . .25 FORMERLY REFERRED TO MASTER TO COMPUTE 25 EIGHT TO CASH A CHECK . . .26 OVERDUE CHECK . . . 26 IS WITHIN BILLS OF EXCHANGE ACTS . 26 MAY BE TAKEN IN EXECUTION . . 26 CHECKS PAYABLE TO ORDER . . 26 A CHECK on a banker is, in legal effect, an inland bill of ex- change, drawn on a banker, payable to bearer on demand. (a) A (k) Wise V. Charlton, 4 A. & B. 786 (31 E. 0. L. R.) ; 6 N. & M. 364 ; 2 H, & W. 49, s. 0. ; Fancourt v. Thome, 9 Q. B. 312 (58 E. C. L. R.). See, however, Storm V. Stirling, 3 B. & B. 841.(77 B. 0. L. R.). But such a note will generally require a mortgage stamp, which may, however, be impressed on the note after it is made. See further Chap, xxiii. on Interest. ^ {v) Jury V. Baker, 28 L. J., Q. B. 255 ; B. B. &. E. 459 (96 E. C. L. R.), s. c. (a;) See Chap. vii. on Irregular Instruments. (o) Keene v. Beard' 8 C. B., N. S. 372 (98 B. 0. L. R.). The 16 & 17 Vict. c. 59, introduces a new sort of draft on a banker, payable to order on demand, exempt- (1) Knipper v. Chase, 7 Clarke, 145. OF A CHECK ON A BANKER. 85 check is consequently subject, in general, to the rules which regu- late the rights and liabilities of parties to bills of exchange. Cheeks on bankers, however, have of late years come into use so frequent, as commonly to supersede in payments of any considerable amount, not only gold and silver coin, but bank notes themselves. With their universal use have grown up certain usages peculiar to *check8, which usages are now engrafted on the com- r^-iA-^ mercial law of the country. (1) Moreover, the Legislature iag the banker from liability if tlie original or any subsequent indorsement be forged : sect. 19. See the observations on this new species of check at the end of the present Chapter. (1) A bank check is substantially the same as an inland bill of exchange : it passes by delivery, when payable to bearer, and the rules, as to presentment, dili- gence of the holder, &c., which are applicable to the one, are generally applicable to the other. Woods v. Schrader, 4 Har. & J. 276 ; Cruger v. Armstrong, 3 Johns . Caa. 5 ; Conroy v. Warren, lb. 259 ; Merchants Bank v. Spicer, 6 Wend. 445 ; Mur- ray V. Judah, 6 Cow. 484 ; Glenn v. Noble, 1 Blackf. 104 ; Smith v. James, 20 Wend. 1.92 ; Bowen v. Newell, 4 Seldeu, 190; Barnet v. Smith, 10 Poster, 256. It is said by Judge Oowen, in Hooker v. Anderson, 21 Wend. 372, that a check is a bill of exchange payable on demand ; and he refers to Brown v. Lush, 4 Yer- ger, 216, in which a draft payable at a certain day after date was held not to be a check. This case is said to have been determined on the authority of a passage in Chitty on Bills (7 Am. Ed. 322, 10th Am. Ed. 512). " Checks are not due before payment is demanded, in which respect they differ from bills of exchange and pro- missory notes payable on a partiftular day.'' The passage by no means warrants the inference ; but if it did, it would find no support in the authority Chitty cites. Judge Story entirely repudiates such a distinction. In the matter of Brown, 2 Story Bep. 502, he says : " A check is not less a check because it is post dated, and thereby becomes, in effect, payable at a future and different time from that in which it is drawn or issued. This is sufficiently apparent from the case of Allen v. Reeves, 1 East Rep. 435. That it may be declared upon as a bill of exchange is no proof that it may not also be declared updn as a check. In many cases they are identi- cal in their legal results ; but by no means in all. Mr. Chitty very properly says, that a check nearly resembles a bill of exchange ; but (he adds) it is uniformly made payable to bearer, and should be drawn upon a banker or a person acting as such . Chitty on Bills, 10 Am. Ed. p. ill. I agree that it nearly resembles a bill of ex- change ; but nullum simile eat idem. It is commonly although not always made pay- able to the bearer; but I conceive it to be still a check, if drawn on a bank or banker, although payable to a particular party only by name, or to him or his order. It is usually, also, made payable on demand ; although I am not aware that this is an essential requisite. The distinguishing characteristics of checks, as contradis- tinguished from bills of exchange are (as it seems to me) that they are always drawn on a bank or banker ; that they are payable immediately on presentment without the allowance of any days of grace ; and that they are never presentable for mere acceptance, but only for payment.'' Although checks are not presentable for acceptance before they are payable, yet they are sometimes presented for acceptance, or what amounts to acceptance. They are marked " good" by the bank officer, and 8b OF A CHECK ON A BANKER. having exempted them from stamp duty, questions have arisen as to what instruments are or are not within the exemption, and as to the consequences of attempts to violate the provisions of the Stamp Acta. In this Chapter it is intended to point out some of those qualities and incidents, which distinguish checks from other bills of exchange. The learned reader will perhaps think that such obser- vations are at present premature, but it has been thought conducive to perspicuity, that the rest of the book should be disembarrassed of distinctions solely applicable to checks, and, that a summary of the law peculiarly relating to them should be attempted in the same part of the work, where observations relating peculiarly to bills or notes are respectively to be found. It is hoped that any obscurity, caused by anticipating what is to follow, will be removed by turn- ing to subsequent Chapters. Checks on bankers have been for many years and are now, more than ever, the most powerful instruments for economizing the cur- rency both metallic and paper. They were, therefore, until recently, exempted from all stamp duty, and are now subject to a duty of one penny only. charged to the account of the drawer as paid. Chancellor Kent (3 Kent's Com. 104, n. 7th Ed.) questions Judge Gowen's doctrine in the same case, that a check is, to all intents and purposes, but a bill of exchange. He says, " A check differs from a bill of exchange in several particulars. It has no days of grace, and requires no ac- ceptance, distinct from prompt payment. 'The drawer of a check is not a surety, but the principal debtor, as much as the maker of a promissory note. It is an absolute appropriation of so much money in the hands of the banker to the holder of the check, and there it ought to remain until called for, and the drawer has no reason to complain of delay, unless upon the intermediate failure of his banker. By un- reasonable delay in such a case, the holder takes the risk of the failure of the per- son OF ba.nk on which the check is drawn. This is quite distinct from the strict rule of diligence applicable to a surety, in which light stands the indorser." This view has been adopted by judicial, authority. Daniels v. Kyle, 1 Kelly, 304. A check post-dated is payable on the day of its date without any days of grace. Mohawk Bank v. Broderick, 10 Wendell, 405 ; Salter v. Burt, 20 Wendell, 205. The payment of a post-dated check by a bank before the day on which it is dated, leaves the money so paid notwithstanding the payment to the credit of the drawer. Godin t. The Bank of the Commonwealth, 6 Duer, 76. It has since been held in New York, in conformity to the views of Story and Kent, that a written order on a bank to pay a sum of money on a future day named, is a check, and is not entitled to grace. Bowen V. Newell, 5 Sandford, 326 ; s. o., 2 Duer, 584 ; 4 Selden, 190. To the same effect is Westminster Bank v. Wheaton, 4 Rhode Island, 30. Contra, Bradley v. Hamilton, 5 Harrington, 305; Morrison v. Bailey, 5 Ohio (N. S.), 13; Andrew v. Blackly, II Ibid. 89. OF A CHECK ON A BANKER. 87 The Greneral Stamp Act,(6) while it subjected bills in general to stamps, exempted from all stamp duties : — All drafts or orders for the payment of any sum of money to the bearer on demanil, and drawn upon any banker or bankers, or any person or persons acting as a banker, who shall reside or transact the business of a banker within ten miles (afterwards fifteen miles, 9 Geo. 4, e. 49, s. 15),(e) of the place where such drafts or orders shall be issued,((i) provided such place shall be specified in such drafts or orders, and provided the same shall bear date on or before the day on which the same shall be issued, and provided the same do not direct the payment to be made by bills or promissory notes. And the 16 & 17 Vict. c. 59 (Schedule), which subjects drafts or orders for the payment of any sum of money to the bearer on demand to a duty of one penny, contains the same exemption. But, by the 17 k 18 Vict. c. 83, s. 7, it is enacted, that no *draft or order so exempted shall, unless the same be duly p^^ , , stamped as a draft or order, be remitted or sent to any place beyond the distance of fifteen miles, in a direct line from the bank or place at which the same is made payable, or be received in payment or as a security, or be otherwise negotiated or circu- lated at any place beyond the said distance ; and if any person shall remit or send any draft or order not duly stamped as afore- said, to any place beyond the distance aforesaid, or shall receive the same in payment or as a security, or in any manner negotiate or circulate the same at any such last-mentioned place, he shall forfeit the sum of fifty pounds. Section 8 enables any person who shall receive any such draft or order at any place within the distance of fifteen miles, from the bank or place at which the same is made payable, which draft or order shall have been lawfully issued unstamped, to aflSx thereto a proper adhesive stamp, and to cancel such stamp by writing thereon his name or the initial letters of his name, and thereupon such draft or order may lawfully be received and negotiated at any place beyond the distance of fifteen miles. Adhesive stamps denoting the duty of one penny may be used (A) 55 Geo. 3, c. 184, Sohed. (c) If a defendant wish to avail liimself of this defence, be 'should plead that he did not make the check declared on. McDowall t. Lyster, 2 M. & W. 52 ; Field v. Woods, 7 Ad. & B. 114 (34 E. C. L. R.) ; 2 N. & P. 117 ; 6 Dowl. 23, s. 0. (d) What not an issuing, Ex parte Bignold, 2 Mont. & Ayr. 663 ; 1 Deac. 712, s. c. ; Chitty, 118. OS OFA CHECK ON ABANKEE. for receipts or drafts, without regard to the special appro^priatioo thereof, (e) In order to bring checks within the exemption, they must have been drawn on a haiiker,{f) must have specified truly the place where actually drawn,(^) and that place must have been within fifteen miles in a direct line from the banker's place of business, they must have been payable to bearer(A) on demand, must not have been *post-dated,(?) nor have directed the payment tc '- -I be made .by bills or notes. (^) The penalties attached to checks made under color of this exemption, but not falling strictly within it, were extremely severe. For the 55 Geo. 3, c. 184, s. 13, enacts, that if any person shall make or issue any check(?) or draft on a banker, payable to bearer on demand, not duly stamped, and not falling in every respect within the exemption, the drawer shall forfeit lOOZ., any person hnowinglif taking it 20?., the banker huowinffly paying it lOOZ. ; and the banker shall not be allowed it in account against the per- («) Sect. 10. See also 16 4 IT Vict. e. 59, ss. 3 & 4. (/) Castleman v. Ray, 2 Bos. & P. 383. \g) Waltera t. Brogden, 1 Y. & J. 457 ; Bopaxt t. Hicks, 3 Excb. I j 8 Q. B. 674 (55 E. C. L. R.), s. c. Where a person residing in a country house four miles from Llanelly, actually dated it as if drawn at Llanelly, it was held that the check was Toid for want of a stamp. Walters v. Brogden, 1 ¥. & J. 457; Field v. Woods, 7 Ad. & Ell. 114 (34 E. 0. L. B.) J 2 N. & P. 117 ;, 6 Dowl. 23, 8. c. ;, and see Rex t. Pooley, 3 B. & P. 311; see also Strickland v. Mansfield, 8 Q. B. 675 (55 E. 0. L. R.), where it was held, that the superscription " Dorchester old Bane, estae- LisHED IN use," printed on a check was a sufficient designation of the place where drawn, in the absence of proof that it was not drawn there. Bali a check addressed to Messrs. G. & Co., Bankers, Lutterworth, was held not to designate the place where the check was drawn. Bond v. Warden, 1 Oollyer, 583 ; and a check headed " Oxford, Wor- cester, ,aud Wolverhampton Railway," but not superscribed as drawn at any place, was held void. Lord Ward t. Oxford Railway CToinpany, 2 De G., Mac. & G. 750. (h) Bex Y. Tales, Moo; C. 0. 170; Carrington's Criminal Law, 3d ed. 273, s. e. The twelve tfudges there decided that a check payable to D. P. J., and not to bearer, was not within the exception in the Stamp Act in favor of checks, and ought to have been stamped as a bill, and not being so, was not a " valuable security" within the 7 & 8 Geo. 4, c. 29, s. 5, and that an indictment for larceny was not sustainable. But a man who steals a void check may be convicted of larceny of a piece of paper. Reg. T. Pei;ry, 1 Car. & K. 725 (47 E. 0. L. R.). (t) Allen V. Keeves, 1 Bast, 435 ; 3 Esp. 281, s. c; Whitwell v. Bennett, 3 B. & P. 559. (A) 55 Geo. 3, c. 184, Sched. Part 1, and 9 Geo. 3, c. 49, s. 15 . (I) Ex parte Bignold, supra. OFACHECKONABANKER. 89 sons hy whom or for whom it was drawn, or against any person claiming under them respectively, (m) And the statute 17 & 18 Vict. c. 83, s. 7, imposes, as we have seen, a penalty of 50Z. for the circulation of a check beyond the fifteen miles, except in cases where a stamp is duly impressed or affixed. Where the defendants, knowing a check to be post-dated, and therefore void, and that the drawers were insolvent, presented it for payment to the bankers on whom it was drawn, who without knowledge of these facts paid the amount, though they had no funds of the drawer's in their hands at the time, but expected some in the course of the day, it was held that the bankers were entitled to recover the money back in an action for money had and received. (w) Such was the general eflfect of the law down to the year 1858 ; but after the 24th May, 1858,' all drafts or orders for the payment of money to the bearer on demand, which were exempt from stamp duty under these provisions, are, by the 21 and 22 Vict. c. 20, s. 1, made chargeable with the duty of one penny. All bankers' checks are, therefore, now subject to a stamp of one penny wherever made, and wherever the banker may live or carry on business. *By sect. 18 of the 23 & 24 Vict. c. Ill, bankers or per- ^^^-^ sons acting as such, into whose hands a banker's draft or •- -* order shall come unstamped, may affix thereto the necessary adhe- sive stamp, cancel the same, and charge the drawer with the stamp ; but the drawer is not thereby relieved from the penalty. It seems, that a check may now be post-dated, may be drawn at a place beyond the fifteen miles, and need not specify the place where drawn, (o) (m) See Green v. AUday, 1 Gale, 218. («) Martin v. Morgan, Gow. 123; 1 B. & B. 289; 3 Mooie, 635, s. c. (o) Looking at the fact that the statutory enactment, 55 Geo. 3; c. 184, s. 13, struck expressly at frauds and evasions of the duties under color of the exemption in favor of checks on bankers, which exemption checks no longer enjoy, and com- paring the statutes 17 Geo. 3, c. 30, repealed so far as relates to ordinary checks on bankers by the 11 & 18 Vict. c. 83, s. 9, and the 55 Geo. 3, c. 184, s. 18, prohibiting printed dates, repealed by the 23 & 24 Vict. c. Ill, s. 19. Accordingly it has been held that a check payable to order may be post-dated (Whistler v. Forster, 32 L. J., C. P.161 ; 14 C. B., N. S. 248 (108 E. C. L. R.), s. 0.) The same point has been decided as to a check payable to bearer. Austin v. Bunyard, 34 L. J., 217 (Q. B,) But in this case the holder had no notice of the post-dating. 90 OF A CHECK ON A BANKER. A cheek may now be drawn or negotiated for any sum of money large or small. Forpaerly, a check for less than the sum of 20s. was absolutely void, and the uttering or negotiating such an instrument was an offence subjecting the offender to a penalty of 201., mitigable to &l.{p) So, also, it was an offence to utter a check on which less than 208. remained ducfg) And while the 17 Geo. 3, c. 30, was in force, and not controlled by any other statute, a check could not be drawn for a sum under 51. But the 7 Geo. 4, c. 6, which repealed the act repealing the 17 Geo. 3, c. 80, and consequently revived that act, ienaGted,(»") that nothing in that latter act(s) con- tained should extend to any draft drawn by a man on his own banker, for money held by that hanker to the use of the drawer. By the 23 & 24 Vict. e. Ill, s. 19, it is enacted that, notwith- standing anything in any act of parliament contained to the con- trary, it shall be' lawful for any person to draw upon his banker who shall honi fide hold money to or for his use any draft or order for the payment to the bearer, or to order on demand, of any sum of money less than 20s. Therefore, a check for an amount under 20s. is good under this act, but nevertheless it may be illegal to utter such a check where a man has no balance at his banker's, though the banker may be likely to pay it.(i) , *A check being drawn payable to bearer, is transferable L , J by mere delivery, but it may be indorsed, for indorsement includes delivery.(M) Generally speaking, the drawee of a bill is not liable till accept- ance. But a banker, having in his hands effects of his customer, is an exception to this rule:(i') he is bound, within a reasonable time after he has received the money, to pay his customer's checks, and is liable to an action at the suit of the customer if he do not. For there, is an implied contract between banker and customer, that the banker shall pay the customer's checks : p,nd the cus- tomer's credit may be seriously impaired by a refusal. M. kept (p) 48 Geo. 3, e, 88, s. 3. (?) Ibid. {r) Sect. 9. («) 1 Geo. 4, c. 6. (f) The Act 26 & 2'7 "Vict. c. 40, s. 1, legalizes all checks under 40s., without any lestrictlon, but that Act is a temporary one. See Appendix. : («) Keene v. Beard, 29 h. J., C. P. 287 ; 8 C. B., N. S. 372 (98 E. 0. L. R.). («) Marzetti v. Williams, 1 B. & Ad. 415 (29 E. C. L. R.) ; 1 Tyr. 77, n. (6), s. o. OF A CHECK ON A BANKER. 91 his account with Williams & Co., bankers. One day in the morn- ing, the balance in their hands due to M. was ii9l, 16s. 6d. About one o'clock on the same day a 401. Bank of England note was paid into M.'s account ; a little after three o'clock, a check, drawn by M. for 87?. 7s. 6c?. was presented. The clerk, after having re- ferred to a book, said, there were not sufficient assets, but that the check might, probably, go through the clearing house. On the following day the check was paid. M. brought a special action on the case against the bankers. No actual damage was proved, but the jury found a verdict for the plaintiff with nominal damages. On a rule for a new trial, "I cannot forbear to observe," says Lord Tenterden, " that it is a discredit to a person, and therefore injurious, in fact, to have a draft refused payment for so small a sum ; for it shows that the banker had very little confidence in the customer. It is an act particularly calculated to be injurious to a person in trade. My judgment in this case, however, proceeds on the ground, that the action is founded on a contract between the plaintiff and the bankers — that the bankers, whenever they should have money in their hands belonging to the plaintiff, or within a reasonable time after they should have received such money, would pay his checks : and there having been a breach of such contract, the plaintiff is entitled to recover damages." Although no evi- dence is given that the plaintiff has sustained any special damage, the jury ought not to limit their verdict to nominal damages, but should give such temperate damages as they may judge to be a reasonable compensation for the injury the plaintiff must have sus- tained from the dishonor of his check. («») *But if the funds in the banker's hands have been applied p^, q-, to the payment of the customer's acceptance, made payable at the bankers, though without any further authority, that is a defence to an action for dishonoring the check. (a;)(l) (mi) Rollia T. steward, 14 C. B. 595 (78 E. C. L. R.). In this case tried at Nor- wich, tlie plaintiff recovered a verdict for 500^., which was, however, reduced at the recommendation of the Court. And a banker having securities in his hands, though the cash balancein bis pass-book was against the customer, has been held liable, where in a previous course of similar dealing checks had been paid. Cummiug v. Shand, 20 L. J., Exch. 129. (a;) Keymer v. Laurie, 18 L. J., Q. B. 218. (1) As it is the duty of the acceptor of a bill to provide funds to pay it, If funds are deposited in a bank for that purpose, the presumption of law is that they were 92 OF A CHECK ON A BANKER. We have already observed, that checks are in legal effect inland bills of exchange, payable to bearer on demand ; and we shall hereafter see, that an ordinary bill of exchange, payable on demand, must be presented for payment, or if the parties live at a distance, forwarded for presentment within a reasonable time, which is gen- erally held to comprehend the day after it is issued. Such also is the general rule as to the presentment of checks. " The result of the cases," says Tindal, C. J., "from Rickford v. Ridge to Boddington v. Schlencker, is, that the party receiving a check has till the following day to present it, where there are the 1 ordinary means of doing so."(y) Formerly, it was held, that the check must be presented on the morning of the next day ; it is now, however, firmly established, that the holder has the whole of the banking hours of the next day within which to present \t.{z) Government checks are not payable at the Bank of England after three o'clock.(a) But there is one material difference between the liability of the drawer of a check and the drawer of a bill payable on demand. The drawer of a check is not discharged by the holder's failure to present in due time, unless the drawer have sustained from the dela actualy prejudice, as by the failure of the banker. (6)(1) The {y) Moule v. Brown, 4 Bing. N. Oa. 268 (33 E. C. L. R.) ; 5 Scott, 694, s. o. Bailey v. Bodenham, 16 0. B., N. S. 288 (Ul B. 0. L. R.) ; 33 L. J., 0. P. 252, s. o. . Presentment to the bankers' London agent is not su£Scient, though named in the printed form of the cheek {ibid.) It is doubtful whether sending a check in a letter to the drawees is a sufficient presentment {ibid.) (z) Pocklington y. Sylvester, 1817 ; Chitty, 385 (18 E. C. L. R.) ; Bobson v. Bennett, 2 Taunt. 388 ; Rickfold v. Ridgi, 2 Camp. 537. {a) 4 & 5 Will. 4, c. 15, s. 21. (6) Serle v. Norton, 2 Mood. & Rob. 401 ; Alexander v. Burchfield, 3 Scott, N. E. 555 J 7 M. & G. 1067 (49 E. C. L. R.), s. o. ; Robinson v. Hawksford, 9 Q. B. 52 (58 E. 0. L. R.) ; Laws v. Rand, 27 L. J., 0. P. 76 j 3 C. B., N. S. 442 (91 E. C. L. E.), s. 0. deposited by the acceptor ; and unless this presumption is contradicted by proof, the acceptor is the only person who can maintain an action against the bank for neglect to apply the funds to the purpose for which they were deposited. Thatcher v. Bank, 5 Sandford, 121. (I) Daniels T. Kyle, 1 Kelly, 304. In Little v. Phoenix Bank, 2 Hill, 425, 0. J. Nelson and J. Bronsom held, that as between the holder and drawer mere delay in presenting a check for payment would not discharge the latter, unless he had been injured thereby ; that it was incumbent upon the holder, |iowever, in'an action upon the check, to show affirmatively that no loss had happened to the drawer. Gowen, OF A CHECK ON A BANKEE. 93 check is an absolute *appropriation of a sum of money in the r*oQ-| banker's hands to lie till called for ; but by delay the holder takes the risk of the bank's failure.(c) (c) See the observations of Chancellor Kent, 3 Com. 104. These views have, in America, as well as in England, been confirmed by judicial decision ; Daniels v. K;le, 1 Kelly, 304. See Byles on Bills, 4th American edition, p. 80. J., adhered to the opinion expressed by him in Hooker v. Anderson, 21 Wend. 327, that irrespective of the question of loss or injury to the drawer, a check must be presented for payment within a reasonable time, or both the drawer and endorser will be discharged ; and see Bowen v. Newell, 5 Sandf. 326. As a general rule, how- ever, a, check is not due from the drawer, until payment has been demanded from the drawee and refused by him. Demand and refusal therefore before suit brought is an essential preliminary to an action against the drawer. Murray v. Judah, 6 Cowen, 484 ; Hooker v. Anderson, 21 Wend. 372 ; Sherman v. Comstock, 2 McLean, 19 ; Daniels v. Kyle, 5 Georgia, 245; Case v. Morris, 7 Casey, 109. As between the holder of a check and an indorser or third person, payment must be demanded within a reasonable time. Murray v. Judah, 6 Cowen, 484. When the parties all reside in the same place, the holder should present the check on the day it is re- ceived or on the following day, and when payable at a different place from that in which it is negotiated, the check should be forwarded by mail on the same or the next succeeding day for presentment. It has been said that greater diligence is necessary in presenting checks for paymentithan is required in relation to bills of exchange. Gough v. States, 13 Wend. 549. But there seems to be no good reason for making such a distinction. The fact that one instrument is drawn upon a bank, and the other upon an individual, can make no difference in principle concerning the duty of the holder. What^will be due diligence in the one case, will be due diligence in the other. Mohawk Bank v. Broderick, 13 Wendell, 133 ;' Janes v. Smith, 20 Wendell, 192. See O'Brien v. Smith, 1 Black, (S. C.) 99. Brady v: The Little Miami R. R. Co., 34 Barbour, 249. Ritchie v. Bradshaw, 5 California, 228. Where a postdated bank check falls due on Sunday, presentment must be made on the fol- lowing Monday, and notice of non-payment given in order to fix the indorser. Salter V. Burt, 20 Wendell, 205 If the drawer of a check payable instantly have no funds in the bank at the time, it is a fraud, and the holder can sustain an action upon it without presentment for payment or notice. True v. Thomas, 16 Maine, 36 ; Hoyt v. Seeley, 18 Conn. 353. When the drawer of a check stops the payment, the holder may recover without notice of non-payment. Punhar v. Mattison, 6 Duer, 537 ; Jacks v. Darrin, 3 B. D. Smith, 557. But it cannot be maintained that the drawer of a bill or check should have in the hands of him on whom he draws, monej' or cash in order to exact due diligence of the holder of the bill or check. In the absence of all authority on this subject, reason would dictate that the drawer is as much exposed to loss from the want of diligence of the holder when he has property or effects in the hands of the person on whom he draws, as when he has money. St. Johns v. Homans, 8 Missouri, 382 ; see Cruger v. Armstrong, 3 Johns. Cas. 5 ; Edwards v. Moses, 2 Nott and McCord, 433 ; Commercial Bank v. Hughes, 17 Wendell, 94; Hooker v. Anderson, 21 Wen- dell, 372. The true doctrine on this point seems to be this, that if the drawer has a right to draw in the belief that he has funds or in the expectation that he 94 01 A CHECK ON A BANKER. If the payee of the check pay.it into his bankers living in the same place that they may present it, the bankers may be, as be- tween their customer and the drawer, still bound to present it on the day after it was originally issued. But as between their cus- tomer and themselves they may be bound to present it earlier, or justified in postponing the presentment later.(cZ) If the party receiving the check from the drawer do not live in the same place with the drawee, he should send it to his banker or other agent by the next day's post, and they should present it on the day after they have received it.(e) The banker should send it () See Fearn t. Filica, V M. & G. 513 (49 E. C. L. R.) ;' 14 L. J., C. P. 15, s. o. (?) Bayley, 106 ; Miller t. Race, 1 Burr. 452 ; Lawsoa v. Weston, 4 Esp. 56 ; Ra- phael T. Bank of England, 11 C. B. 161 (84 E. 0. L R.). See Chap. xi. on Transfer, (r) Treuttell v. Barandon, 8 Taunt. 100 (4 E. C. L. R.) ; 1 Moo. 543, s. o. 'See the subject of restrictive indorsements more fully treated in the Chapter on Transfer. f (») Haynes v. Foster, 2 C. & M. 237. TO A BILL OR NOTE. 113 do SO would be legal. (<) Primd fade, a bill broker has no right to pledge the bills of his different customers in one mass, for that might subject a bill to a lien beyond the amount advanced upon it.(s) But the usage of a particular district may enlarge the autho- rity of a bill broker, and give him a right to pledge the bills of different customers in one mass.(i) Such is the usage of bill bro- kers in the city of London, and it is not an unreasonable one, for although it may occasionally be attended with inconvenience, yet, on the other hand, the bill broker may often raise money on a large scale on better terms than on a small one, or dis- count, with other bills, bills which alone could not be discounted at all.(u) If an offer to accept be made by an agent, the holder may and should require the production of his authority, and, if satisfactory authority be not produced, may treat the bill as dishonored. "A person taking an acceptance importing to be 1aj procuration," says Mr. Justice Bayley, " ought to exercise due caution, for he must take it upon the credit of the party who assumes the authority to accept, and it would be only reasonable prudence to recjuire the production of that authority, "(a;) It has been doubted whether, in any case, a holder is bound to accLuiesce in an acceptance by an agent, on the same principle that it has been held that a purchaser is not bound to accept a conveyance to be executed by a power of attorney, viz. : that it will multiply the proofs necessary to sustain his title, (y) ■> *The authority of an agent will be presumed to- continue till due notice of its revocation has been, given ; and such L J notice should be, as to strangers, by publication, in the Grazette ; and, as to customers and correspondents, by express individual communication. (J) («) Haynes v. Poster, 2 C. & M. 237. (() Foster v. Pearson, 1 C, M. & R. 849; 5 Tyr. 255,. s. 0. («) " A bill broker is not a person known to the law with certain prescribed duties, but his employihenfis one which depends entirely on the course of dealing." Ibid. Foster v. Pearson, 1 C, M. & R. 849. (z) Attwood V. Munnings, 7 B. & 0. 278 (14 E. C. L. E.) ; 1 M. & R. 78 (17 B. C. L. R.) [y) See Coore t. Callaway, 1 Esp. 115 ; Chitty, 283. (i) See Newsome t. Coles, 2 Camp. 617. 8 114 OF THE CAPACITY OP CONTRACTING PARTIES A mere agent cannot delegate his authority, unless specially"' authorized so to do.(e)(l) The effect of notice to an agent of an infirmity in the title to a hill of exchange which he receives for his principal, will be dis- cussed in the Chapter on Consideration. An agent will be personally liable to third persons on his draw- ing, indorsing or accepting, unless he either sign his principal's name only, or expressly state in writing his ministerial character, and that he signs only in that character; "unless," to use the words of Lord Ellenborough,(cZ) "he states upon the face of the bill that he subscribes it for another ; unless he says plainly, ' I am the mere scribe.' " Thus, where the defendant, agent of a banker, drew the follow- ing, bill: "Pay to the order of A. B. 501., value received, which place to the account of the Durham Bank, as advised," and sub- scribed his own name, it was held that the defendant was person- ally answerable and he alone, though the plaintiff, the payee, knew that he was only agent, (e) So, if a broker draws upon the buyer of goods, which he has sold for his principal in favor of the latter, to whom he indorses the bill, he is liable, as drawee, to his prin- cipal.(/) A bill for 200Z. was drawn upon the defendant by the description of " Mr. H. Bishop, Cashier of the York Buildings Company, at their house in Winchester Street, London;" and the bill directed him to place the 200?. to the account of the company. The letter of advice from the drawer of the bill was sent to the company, and by their direction the defendant accepted it, in this form, "Accepted, 13th June, 1732, per H. Bishop." He was held responsible, the Court, considering the addition to his name as (c) Combes' case, 9 Rep. 76 ; Palliser v. Ord, Bunb. 166. Bat an authority to in- ■doTse may imply an authority to indorse by the hand of another in the agent's pre- sence. Lord T. Hall, 9 L. J., C. P. 14T ; 8 0. B. 627 (65 E. C. L. B.), s. o. ; see also Ex parte Sutton, 2 Cox, 84. (d) Leadbitter v. Farrow, 5 M. & S. 345 ; Sowerby v. Butcher, 2 C. & M. 368 ; 4 •Tyr. 320, B. 0. ' (e) Ibid. ; Goupy v. Harden, 7 Taunt. 160 (2 B. C. L. E.) ; 2 Marsh. 454 (4 B. 0. ,L. B.). (/) Leferre v. Lloyd, 5 Taunt. 749 (1 E. C. L. R.) ; 1 Marsh. 318 (4 E. C. L. B.). (1) An agent with power to give notes cannot delegate that power. Brewster v. Bobart, 15 Pick. 302; Emerson v. Providence Manufacturing Co., 12 Mass. 237, TO A BILL OE NOTB. 115 merely descriptive, *the order to place the sum to the ac- count of the company as a direction how to reimburse him- *- J self, and the letter of advice inadmissible to superadd to the terms of the bill, as against the plaintiflF, an indorsee.(^) And a bill directed to W. C. for value received in machinery supplied to the adventurers in Hayter and Holme Moor Mines, and accepted, as follows: "Accepted for the companies, payable at the Union Bank, &c., W. C. Purser." was held to create a personal lia- bility. (A)(1) The rule of law as to simple contracts in writing, other than bills and notes, is, that parol evidence is admissible to charges unnamed principals, and so it is to give them the benefit of the contract ;(i) but it is inadmissible for the purpose of discharging Xff) Thomas v. Bishop, 2 Stra. 955 ; Rew v. Pettet, 1 A. & E. 196 (82E. 0. L. R.) ; 3 Nev. & M. 456 (28 B. C. L. R.), s. c, nom. Crew v. Pettet, ante. As to an agent's remedj, see Hnntley T. Sattderson, 3 Tyr. 469 ; 1 0. & M. 4C7, s. c. (A) Mare v. Charles, 25 L. J., Q. B. 119; 5 B. & B. 978 (85 E. C. L. R.), a. c. See post, as to officers of a public company signing in their own name. (i) As to the cases in which a man who signs himself agent may come forward and sue as principal, see Bickerton v. Burrell, 6 M. & S. 383, and Rayner v. Grote, 16 L. J., Exch. 82; 15 M. & W. 359, s. c. (1) An officer of a corporation, to whose order, as such, a note executed to it is payable, and who indorses the note, adding to his name his official character, and who indorses it in behalf of the corporation, is not personally responsible as in- dorsee. Babcock t. Beman, 1 Kernan, 200 ; Shaver v. Ocean Co., 21 California, 45. That the mere addition of the official style or designation of the payty either in making or indbrsing negotiable paper, does not prevent personal liability, seems to accord with the general current of American authorities. Morell v. Codding, 4 Allen, 403; Chadsey v. M'Creery, 27 Illinois, 253; Fowler v. Atkinson, 6 Minne- sota, 578; Drake v. Flewellen, 33 Alabama, 106. One who accepted "as treasurer" is primS, facie personally liable, but can show that he accepted as agent duly author- ized, and that plaintiff had notice. Brua v. Lord, 1 Hilton, 247. Indorsement by defendant " as treasurer" of a note given to him iu that capacity, and the plaintiff knew the facts, h^ld that defendant was not personally liable. Babcock v. Beman, 1 B. D. Smith, 593. There are cases in which such words are held primS, facie, to show the note to be the note of the corporation and not the officer, who cau only be made liable personally, upon its appearing that he was not authorized. A draft payable to " A. B. Cash," and indorsed " A. B. Cash," is prim& facie the indorsement of the bank, and not of A. B. Collins v. Johnson, 16 Georgia, 458.' A note given by " the undersigned directors of School district," creates no personal liability. Baker v. Chambles, 4 Greene, 428. A note to "A. B., treasurer," indorsed "A. B., treasurer," he being then treasurer of a corporation, creates no personal liability in A. B. Babcock v. Beman, 1 Kernan, 200. 116 OF THE CAPACITY OF CONTRACTING PARTIES the agent, who sighs as if he were principal in his own name.(y ) And the rule of law is reasonable, for in the two former cases the evidence is consistent with the instrument, for it admits the agent to be entitled or bound ; but in the latter case such evidence would be inconsistent with^the terms of the instrument.(A) Yet it is conceived that the law as to negotiable instruments is different in one respect, to wit, that where the principal's name does not appear, he is not liable on a bill or note as a party to the instrument. (Z)(l) (j) As to cases in which an agent has been held personally liable at law, but not in equity,, where he described himself as agent, see furthjr ^ake v. Harrop, 30 L. J., Exch. 273 ; Price v. Taylor, 5 H, & N. 540. ' [k) Higgins v. Senior, 8 M. & W. 834. (i) See an American case, Story on Agency, 125, u. See also Pentz v. Stanton, 10 Wend. 2Tl ; Conro v. Port Henry Iron Company, 12 Bar. 551 ; and the observa- tions of Lord EUenborough and Mr. J. Holroyd, in Leadbitter v. Farrow, 5 M. & S. 349; Bult T. Morrell, 12 A. & E. 750 (40 E. C. L. R.). But see Lindua v. Brad- well, 5 C. B. 583, where a bill drawn on the principal, accepted by the agent,ip the agent's name, was held binding on the acceptor. See also Gurney v. Evans, 27 L. J., Exch. 166; 3 H, & N. 122, s. o. (1) Deeds by an agent or attorney must be executed in the name of the principal to bind him, but it is otherwise in case of simple contracts. New England Marine Ins. Co. V. De Wolf, 8 Pick. 56. In contracts not under seal, if the agent intend to bind his principal and not himself, it will be sufficient if it appear in such contract that he acts as agent. Andrews v. Estes et al., 2 Fairfield, 267 ; Shotwell v. McKown,' 2 Southard, 828. It is not sufficient to charge the principal or protect the agent from personal responsibility, merely to describe himself as agent, if ihe language of the instrument imports a personal contract on his part. But when the name of the principal ap|>ears on the face of the instrument or contract, and it is evident that the agent did not intend to bind himself personally, but acted merely on behalf of the principal, if he acted by competent authority, the principal and not the agent will be bound. Pents v. Stanton, 10 Wendell, 271. It will of course be remem- bered that the above case respects the liability of the principal on ihe bill as such, — for a principal is liable on his agent's contracts for him whether his name was dis- closed or not — unless, the principal being known, credit_was exclusively given to the agfent, — in an action founded on the original consideration. Ibid, A note signed by the authorized agents of a corporation, with words annexed to their names intimating their agency „is the note of the corporation and not of the person signing it. Johnson v. Smith, 21 Conn. 627. A promissory note was subscribed thus, " Pro W. G., J. S. C.;" it washolden to be the note of W. G., if J. S. C. had authority. Long V. Colburn, 11 Mass. 97 ; and see Emerson v. Providence Man. Co., 12 Mass. 237 ; .Bice v. Gove, 22 Pick. 158 ; Robertson v. Pope, 1 Richardson, 501 ; Orfult v. Ayres, 7 Monroe, 356 ; McBean v. Morrison, 1 A. K. Marshall, 545. When one gives a promissory note as guardian for a minor, although it is so stated in the body of the note, he 'is personally liable. Forster v. Fuller, 6 Mass. 58. As an admin- TO A BILL OR NOTE. 117 An agent who makes a contract as agent thereby impliedly undertakes that he has authority, and he 'and. his ^executors r*oQ-i are liable in an action ex contractu, if he really had no authority, (wj) Therefore, if an agent, having no authority so to do, write, with- out a fraudulent intent, another man's name as acceptor of a bill, (m) Lewis v. Nicholson, 18 Q. B. 509 (83 E. 0. L. E.) ; Randall v. Trimen, 18 0. B. 786 (86 B. C. L. E.) ; Collen v. Wright, 7 E. & B. 301 (90 B. 0. L. E.) ; 26 L, J., Q. B. 147 ; 8 B. & B. 647 (92 B. 0. L. E.) ; 27 L. J., Q. B. 215, s. c. istrator cannot by his promise bind the estate of the intestate, so neither can the guardian by his contract bind the person or estate of his ward. Ibid. When individuals subscribe their proper names to a promissory note, priraS, facie they are personally liable, though they add a description of the character in which the note is given ; but such presumption of liability maj' be rebutted, as between the original parties, by proof that the note was in fact given by the makers as agents with the payee's knowledge. Brockway t. Allen, 17 Wendell, 40 ; Webb v. Burke, 5 B. Monroe, 51 ; Hovey v. Magill, 2 Conn. 680 ; and see Hills v. Bannister, 8 Cowen, 31 ; Fogg V. Virgin, 19 Maine, 352; Pomeroy v. Slade, 16 Vermont, 220; Packard v. Nye, 2 Metcalf, 47: Fitch v. Lawton, 6 Howard, (Miss.) 371 ; Eupert v. Madder, 1 Chandler, 146; Collins v. Johnson, 16 Georgia, 458; Arnold v. Sprague, 34 Ver- mont, 402; May y. Hewitt, 33 Alabama, 161; Conner v. Clark, 12 California, 168. If agency sufficiently appears on the face of the instrument there is no personal liability. Marshall v. Cornish, 13 California, 45. A note " we as trustees promise," &c., held to be the note of the trustees and not of the individuals. Sanborn v. Neal, 4 Minnesota, 126. " I promise to pay," signed " A. B. by her trustee C. D.," does not bind the trustee personally. Taylor t. Shelton, 30 Conn. 122. When a note was made payab)e to the order of C. D. "as assignee," and by him indorsed " C. D. assignee ;'; held that C. D. was not liable personally. Bowne v. Douglass, 38 Bar- bour, 312. A bill concluding "which place to account of Pompton Iron Works, A. B. agent," is binding on the persons carrying on business under that name, if the agent was duly authorized. Fuller v. Hooper, 3 Gray, 334. However it was sub- sequently held, that a bill of exchange, drawn by an agent in his own name, does not bind his principal, though made for his benefit, and containing a direction to the drawee to charge the amount thereof to his account. , Bank of British North America v. Hooper, 5 Gray, 567. A bill drawn on "Steamer 0. W. D. and owners," and accepted " Steamer Q. W. D. by A. B. agent," binds the owners. Alabama Co. r. Brainard, 35 Alabama, 476. If one draws a bill in his own name, without stating that he acts as agent, unless when acting for the government, he is personally liable, although he directs it to be paid out of a particular fund, and although the person In whose favor it ia drawn, knows the drawer to be but an agent. Newhall v. Dunlap, 14 Maine, 180 ; Snow v. Goodrich, Ibid. 235 ; Arnold v. Sprague, 34 Ver- mont, 402. A public agent is not answerable personally for any contract made by him in his official capacity, unless he specially binds himself to be personally respon- sible. Tucker v. The Justices, 13 Iredell, 434. The weight of authority is that a factor, who indorses generally the bills which he remits, renders himself personally liable upon his indorsement to his principal as well as to third persons. Ken- back Brothers v. MoUman, 2 Duer, 2.27. 118 01' THE CAPACITY OF CONTRACTING PAETIBS that is a fraud in law for ■which such agent is responsible, even to a subsequent indorsee ;(w) but no one can be liable as aceeptor'hut the real drawee, unless he be acceptor for honor. And where a man assuming to act as agent is really not so, in consequence of a revocation, by the death of his principal, unknown to the agent, so that there is no fault in the agent, the agent is not liable,(o) nor the executors of the deceased principal.(p)(l) An agent who has received for his principal money which the principal is bound to refund, is not liable to the owner of the money after he has paid it over to his principal in due course and without notice.(g') A safe and proper mode in which an agent may indorse, so as to avoid personal responsibility, is by adding the words, sang recours or without recourse to me.{r) An agent or servant who joins with his principal or master in the commission of a fraud, is liable to an action. Even although the principal be an incorporated company. Thus a director, manager or assistant manager of a joint-stock bank may be per- sonally responsible for a fraudulent report. For the relation of jagency or service cannot oblige to the commission of a fraud. (s) If a man hold a bill or note as agent for another, and the cir- (n) Polhill V. Walter, 3 B. & Ad. 114 (23 E. 0. L. R.). If he had signed the drawer's name without authority, qumre, whether he would not have been personally liable on the bill as drawer. Wilson v. Bartlirop, 2 M., & W. 863. (0) Smout V. Ilberry, 10 M. & W. 1. (p) Blades v. Free, 9 B. & C. 161 (lY E. C. L.iR.). (g) Holland v. Russell, 32 L. J., Ex. Ch. 297. (r) Vide post, Chapter vi. («) Cullen T. Thompson, Dom. Proc. 1863. (1) If a person assumes to act as the agent of another, and acts without authority or exceeds his powers, he binds himself. Keenan v. Harrod, 2 Maryland Ch. Dec. 63. An agent, who exceeds bis authority as such, in signing a note, which purports to express the promise of his principal, is not personally liable thereon. Jcfts t. York, 4 Gushing, 371. In case of a defective power to bind the principal, if the agent speaiss only in the language of the principal, and does not use apt language to bind himself, he will not be liable on the contract, but may be subjected to an action for a false assumption of authority. Johnson v. Smith, 21 Conn. 627. A person signing a note as attorney, without authority, is personally liable if it con- tain apt words to bind him personally. Byars v. Doors, 20 Missouri, 284. If J. W. signs a note by the name of A. W. he is bound thereby. Jewelt v. Whalen, II Wisconsin, 124. TO A BILL OK NOTB. 119 cumstances be such that the principal cannot recover, the infirmity of the principal's title infects the agent's title, and the agent can- not recover. M. and Co., residing at Middleburgh, remitted to the plaintiff, in London, a Bank of England note for 500Z. informing him that they should draw upon him for the amount at some future period. The plaintifiF presented it for payment, but the bank detained it *on the ground that it had been obtained by r:|cQq-i means of a forged draft from a previous holder. In trover by the plaintiff it was held, that the plaintiff was identified with his principals, and that, as there was no evidence of their having given full value for it, he could not recover, (i) So where 0. and Co., in Paris, being indebted to the plaintiff in London to the amount of 1,300Z. remitted to him a Bank of England note for 5001., and the bank detained it because it had been stolen some time before, it was hold in trover by the plaintiff against the bank, that though the plaintiff ha-d a demand on 0. and Co. for more than the amount of the note at the time when he received it, yet, as no farther advances had been made or credit given by him on account of the note, he must be considered as their agent, and prove that his principals, 0. and Co., gave full value for •it.(M) From this case, it might seem to follow, as a general rule, that wherever a bill or note, payable on demand, is remitted to a creditor in liquidation of an existing debt only, and no fresh credit is given or advances made by the creditor on the faith of the instru- ment, he may be treated by the parties liable on it as the agent of the debtor from whom he received it. A doctrine which, while it cannot injure the creditor (for if he cannot recover, still he is but where he was before he received the remittance) would, no doubt, tend to prevent gratuitous, fraudulent, or felonious holders of paper from obtaining its value by paying it away to their creditors. (a;) But it is conceived that in general a pre-existing debt due to the (i) Solomons t. The Bank of England, 13 East, 135 ; 1 Rose, 99, s. c- (m) De la Chaumette v. The Bank of England, 9 B. &. C. 208 (17 E. 0. L. R.). (x) This doctrine was much discussed in the case of Einnerslej v. Somers, Exch. M. T. ^832, in relation to Seqeant Onslow's Act, 58 Geo. 3, o. 93. The court appeared inclined to support the rule deduoible from De la Chaumette v. Bank of England, bat no judgment was given, and the cause was, I believe, afterwards settled. But see Perceval v. Pramplin, 3 Dow. T50 ; Foster v. Pearson, 1 C, M. & B. 849 ; 5 T;r. 255, s. c. It is to be recollected that a bill or note, payable at a, future day, suspends till its maturity the remedy for the antecedent debt. There may, therefore, in this respect be a difference between an instrument payable on demand, and one payable at a future day. See the Chapter on Considemiion. 120 OF THE CAPACITY OF CONTKACTING PAETIES transferee of a bill entitles him to all the rights of a holder for yalneJy) An agent who fraudulently negotiates or deposits bills is guilty r*401 °^ * misdemeanor, under the 24 & 25 Vict. c. 95, *ss. 75 and 76, and is punishable with seven years' penal servi- tude. If an agent, employed to present a bill, fails to make a due pre- sentment, or to give due notice of dishonor, he is liable to an action at the suit of his principal,(0) who may recover nominal damages, though he have sustained no actual loss.(l) (y) It has been solemnly so held by the Supreme Conrt of the United States, Swift T. Tyson, 16 Peters, 97. See the Chapter on Consideration. (z) Van Wart v. WooUey, B. & Moo. 4 (4 B. 0. L. R.) ; 3 B. & 0. 439 (10 E. 0. L. E.) ; 5 D. & R. 374 ; 1 M. & M. 520 (22 E. 0. L. R.), S. c. ' (1) A bank, by failing to demand payment of a bill received for collection, makes the bill its own, and becomes liable to its owner for the amount. Bank of Wash- ington V. Triplett, 1 Peters, 25 ; McKinster t. Bank of Utica, 9 Wendell, 46, 11 Ibid. 473 ; Stowe v. Bank, 3 Devereux, 408 ; Fabers v. Mercantile Bank, 23 Pick. 330 ; Branch Bank v. Knox, 1 Alabama, 148 ; Bank of Mobile T. Huggins, 3 Ibid. 206 ; Phipps V. Millbury Bank, 8 Metcalf, 79 j Tyson v. State Bank, 6 Blackford, 225. It has been held in many cases that it is only necessary that an agent, whether a bank or individual, employed to collect a note or bill, should take the usual steps to fix the indorsers ; and when, therefore, a notary public is employed by the agent to make demand, and give notice, and he is guilty of negligence, the agent is not liable. It woul,d seem that the employment of a sub-agent not invested with public authority, as is anotary public, will not discharge theagentfrom his liability. Belle- mire V. The Bank U. §., ] Miles, 173 ; s. u. 4 Whart. 105. It may be a question, however, whether the employment of a competent sub-agent is not all the duty that is demanded of the agent in such a case ; the agency being in general purely gratui- tous : s. 0. 4 Whart. 1 12 ; Bank of Utica v. Smith, 18 Johns. 239 ; Smedes v. Bank of Utica, 20 Ibid. 393 ; Agricultural Bank v. Commercial Bank, 7 Smedes and Marsh. 592 ; Baldwin v. Bank of Louisiana, 1 Louis. Ann. Rep. 13. In South Carolina, however, it has been determined that the general custom of the bank to use the money so collected, is a sufficient consideration to subject them, in this respect, to the liability of a paid agent. Thompson v. The Bank of the State, 3 Hill, 77 ; s. c. Riley, 81 ; and see Downer v. Madison Bank, 6 Hill, (N. T.), 648. In the Mechanics' Bank v. Earp, 4 Eawle, 384, it was held that when a note is deposited with a bank to be transmitted for collection to another place, the bank was not liable for the laches of its correspondent. It seems that if the transmitting bank had entered into a special agreement or received a pecuniary reward for its services in collecting the bills, beyond a mere charge to cover expenses, and the bank to which the note was transmitted was its agent for that purpose, it would have been responsible for the neglect of such agent, and an action might have been main- tained for damages commensurate with the injuty sustained in consequence of such TO A BILL OR NOTE. 121 As a principal is bound by his agent's contracts, so he may take advantage of them, but he is, if undisclosed at the time of the con- tract, subject to any defence, partial or complete, on which the clefendant could have relied against the agent. A drawer delivered a bill to his agent to be discounted, the agent indorsed the bill as his own to. the defendant', a bill broker, who procured it to be dis- counted, but handed over to the agent only a portion of the pro- ceeds. The drawer, being afterwards obliged to take up the bill, sued the defendant for money had and received to the drawer's use. It was held, that he was entitled to recover, and that a representa- tion by the agent, that the bill was his own, would not preclude the principal from recovering, but only subject him to any defence which the defendant might have set up against the agent.(a) An agent who has authority to take cash in payment has thereby no authority to take bills. (6) A partnership is where several persons are jointly engaged in a common undertaking with a communion of profit and loss.(c) But, to render a man liable to third persons as a partner, it is suflScient if he merely hold himself out to them as such, though he really have no interest whatever ; or. if he really have an interest, though his name do riot appear.((£) In treating of partnership, in its relation to bills of exchange, we shall consider, first, the case of a partnership *which is r^A-[-\ both actual and ostensible ; secondly, the case of a secret or dormant partner ; thirdly, the case of a mere nominal or osteiv- sible partner ; fourthly, the consequences of a dissolution ; and lastly, the case of an occasional partnership. (a) Bastable v. Pool, 1 C, M. & B. 410; 5 Tyr. Ill, s. o. (4) Sykes v. Gyles, 5 M. & W. 645. Post, Chapter xxv. (c) But a communion of loss is not essential to the existence of a partnership. " Sed nee damni communio ad substantium sooietatia pertinet ; quippe quae etiam ita constitui potest, ut unus e sociis damnl sit expers." Vin. Com. 3-26. Gilpin v. Enderby, 5 B. & Aid. 954 (7 E. C. L. R.) ; 1 D. & R. 570 (16 B. C. L. R.), s. 0. ; Bond V. Pittard, 3 M. & W. 357 ; Fereday v. Hordern, Jac. 144 ; 18 Vea. 306 ; Smith's Commercial Law, 3d ed. 21. (d) Pott V. Eyton, 3 C. B. 32 (54 E. C. L. R.). And see post as to occasional partnerships. neglect. And see Lawrence v. The Stonington Bank, 6 Conn. 528 ; Bank of New Orleans t. Smith, 3 Hill, 560; Allen v. Merchants Bank, 22 Wendell, 215; Dor- chester and Milton Bank v. New England, 1 Gushing, 177 ; The Montgomery County Bank v. Albany Bank, 8 Barbour Sup. Ct. 396 ; Commercial Bank v. Union Bank, 1 Eernan, 203. 122 OF THE CAPACITY OF CONTRACTINa PARTIES ' First, as to a partnership both actual and ostensible. And herein, first, with respect to the rights and liabilities of such partners inter se. In many deeds and agreements of partnership there is a stipula- tion, that one partner shall not draw, indorse or accept bills with- out the consent of his copartner ; the consequence of a violation of this stipulation is, as between the partners, to create a right of action at the suit of the injured partner against the partner viola- ting it, and, as we shall presently see, to protect the former against bills improperly drawn, indorsed or accepted, and in the hands of a holder with notice. Where a plaintiff is interested in a bill or note as plaintiff, and yet jointly liable with the defendant, though the objection do not appear on the face of the declaration, he cannot sue on it. Thus^ where M. sued on a note, and the defendants pleaded that the note was made by M., the plaintiff, and others jointly with the defend- ant, the plea was held a good plea in bar.(e) So, where a note was made by E. in favor of the firm in which he was a member, viz., C, D. and B., and by them endorsed to ,A., B. and G., who, as indorsees, brought an action against D., and D. pleaded (not in abatement but in bar) that C, one of the plaintiffs, was also liable as an indorser, together with D., the defendant, the plea was held good.(/) So where the plaintiff, the holder of shares in a wash- ing company, drew bills on the directors of the company for goods furnished by him, which bills were accepted for the directors by their secretary, in an action by the plaintiff against the directors, it was held that he could not recover. " It may be admitted," says Best, C. J., " that if a partner were to draw on other part- ners by name, and they were individually to accept, he might re- cover against them, because by such an acceptance a separate right is acknowledged to exist. But that is not the case here, for the bills are drawn on the directors of the company and accepted for the directors. They are the agents of the company, and accept as r*421 ^S^'**® °^ *^® company. The case, *therefore, is that of one partner drawing on the whole firm, including himself."(^) An agent, and member of a company, employed to sell goods for the (e) Moffat V. Van Millingen. 2 B. & P. 124, n. (/) Mainwaring t. Newman, 2 B. & P. 120. (g) Neale v. Turton, 4 Bing. 149 ; 12 Moore, 365, s. o. TO A BILL OR NOTE. 123 company, drew in his own ijame, and payable to his own order, a bill on a purchaser of the goods ; he then indorsed it to the actuary of the company, who indorsed it to another member and creditor of the company. It was held that the, last indorsee could not sue the drawer on the bill. " Both the defendants," say the Court, " were members of the company. If, therefore, the plaintiffs could re- cover on this bill, it would be a recovery by one joint contractor against another, and then the defendants would have a right to call on the plaintiffs for contribution. It is clear, therefore, that no action can be maintained upon the hill."(h) But where a married woman, being administratrix, received a sum of money in that char- acter, and lending the same to her husband took for it the joint and several promissory notes of her husband and two other persons, it was held that, after her husband's death, she might maintain an action against the surviving makers. («') And where a joint and several note was given to two payees, one of them being also one of the makers, it was held that an action lay at the suit of the two payees against the other maker.(A) So, where the holder of a bill is also liable upon it, the technical difficulty in the way of an action may be removed by indorsement before the bill is due.(Z) • From these cases the following general principles appear to result. That in no case can a man sue, where on the face of the record he is both plaintiff and defendant! Nor where he is, on the contract declared on, both entitled and liable on the face of the instrument,(m) though that do not appear on the declaration, and though the defendant omit to plead the non -joinder in abatement. Nor in certain cases where he is both entitled and liable to con- tribute, though such liability appear neither on the *instru- r^^o-i ment nor on the record. (w) But the giving of a bill or note (h) Teague v. Hubbard, 8 B. & 0. 345 (15 B. C. L. R.) ; 2 M. & R. 369 (1'7 B. 0. L. R.) ; Dans. & LI. liS, h. o. But the mere holding of script only constitutes such an inchoate right of partnership as will not interfere with an action on a note given by the directors. Fox v. Frith, 10 M. & W. 131. (i) Richards v. Richards, 2 B. & Ad. 447 (22 B. 0. L. R.) ; see Rose v. Poulton, 2 B. &. Ad. 822. (i) Beecham v. Smith, E., B. & E. 442 (96 E. 0. L. R.). (l) Morley v. Culverwell, T M. & W. 174 ; Steele t. Harmer, 15-L. J., Exch. 219 ; 14 M. & W. 831, and 19 L. J., Exch. 34; 4 Exch. 1, s. c, in error. (m) In the case of a joint and several note, see Beecham v. Smith, supra. (n) But see as to Joint Stock Companies, 7 & 8 Vict. c. 110, s. 45 ; 20 Yict. c. 47 ; 21 Vict. c. 14 ; 21 Vict. c. 80 ; 22 Vict. c. 60.. 124 OF THE CAPACITY OF CONTRACTIN& PARTIES may be an acknowledgment of a separate right and corresponding obligations.(o) That the mere technical difficulty, of the same person being both entitled and liable on the face of the instrument, may be removed by death, survivorship, or transfer, provided there be no liability to contribute. Secondly, as to the rights and liabilities of partners, both actual and ostensible, as between the firm and the world, in respect of bills and notes. The law presumes, that each partner in trade is intrusted by his copartners with a general authority in all partnership affairs. Each partner, therefore, by making, drawing, indorsing or ac- cepting negotiable instruments,(p) in the name of the firm, and in the course of the partnership transactions, binds(5') the firm, whether he sign the name of the firm, or sign by procuration, or accept in his own name, a bill drawn on the firm.(r)(l) But it is a strict • rule that the name of the firm must be used, otherwise atf action (0) See the observations of Best, C. J., in Neale v. Turton, 4 Bing. 149 ( 13 E. 0. L. R.) I 12 Moore, 365, s. 0, | see also Bedford T. Brutton, 1 Bing.N. 0. 399 (2T E. C. L. R.); Andrews v. Ellison, 6 B. Moore, 199 ; Lomas v. Bradshaw, 19 L. J., 0. B. 273 ; 9 0. B. 620 (6Y E. C. L. R.), S. 0. {p) Harrison T. Jackson, 1 T. R. 207 ; Pinkney T. Hall, 1 Salk. 126 ; 1 Ld. Raym. 175, a. 0. ; Lane v; Williams, 2 Vern. 277 ; Wells v. Masterman, 2 Esp. 731 ; Swan V. Steele, 7 East, 210 ; 3 Smith, 199, s. o. ; Ridley v. Taylor, 13 East, 175. {q) As to bills given for money borrowed for partnership purposes, see Browne v. Kidger, 28 L. J., Ezch. 66 ; 3 H. & N. 853," s. 0. (r) Mason v. Rumsey, 1 Oamp. 384 ; see Jenkins v. Morris, 16 M. & W. 879 ; Stephens v. Reynolds, 5 H. & N. 513. (1) Partners are bound by a note given by one partner in the partnership name, although in violation of private instructions from one partner to another. Miller V. Hughes, 1 A. K. Marsh. 181 ; Bascom v. Young, 7 Missouri, 1 ; Gano v. Samuel, 14 Ohio, 592. A partner has no right to bind his copartner by a note, except in a partnership transaction. Wagon v. Clay, 1 A. K. Marsh. 257. It is binding never- theless in the hands of a bonS, fide holder without notice. Hawes v. Dunton, 1 Bailey, 146. See Poster v. Andrews, 2 Penna. Rep. 160 ; Huntington v. Lyman, 1 Chip. 438 ; Munroe v. Cooper, 5 Pick. 412 ; Chazournes t. Edwards, 3 Pick. 5 ; Cats- kill Bank v. Stall, 15 Wend. 364; Baird v. Cochran, 4 S. & R. 397 ; Davenport v. Ranlett, 3 N. Hampshire, 386 ; Weed v. Richardson, 2 Dev. & Bat. 535 ; Ralston vi Click, 1 Stewart," 526 ; Graeff v. Hitchman, 5 Walts, 454; Livingston v. Roosevelt, 4' Johns. 251 ; Smith v. Lusher, 5 Cowen, 688 ; Williams v. Walbridge, 3 Wend. 415 ; Morcein v. Andrus, 10 Wend. 461 ; Holmes v. Burton, 9 Verm. 252 ; Fleraming T. Presoott, 3 Richardson, 307; King v. Faber, 22 Penna. State Rep. 21. TO A BILL OR NOTE. 125 cannot be maintained against the firm even where a partner has signed his own name only, and the proceeds were in reality applied to partnership purposes,'(«) unless the name of the signing partner were also the name of the firm;(i) in which case it was formerly held that the holder might charge either the signing partner or the firm, at his election. (m) Where *one of the partners in- dorsed the name of the firm on fictitious bills, the firm was ^ -^ held liable, (w) A partner cannot bind his copartner by the several obligation of a joint and Several note,{w) but such a note would not be void as a joint note,(2;) for it seems a partner may bind his copartner by a joint note(^) for partnership purposes, even though in violation of partnership articles, provided the note be in the hands of a holder for value without notice. (s) The firm is not liable where the signing partner varies the style of the firm, unless there be some evidence of assent by" the firm to the variation, or unless the name used, though inaccurately, yet substantially describe the firm. (a) Therefore, ^here a firm con- sisted of John Blurton and Charles Habershon, who carried on business under the firm of John Blurton, it was held that the firm was not bound by an indorsement, by one partner, who had written John Blurton and Oo.(6) And where defendants never traded (s) Sififkin v. Walker, 2 Camp, 308 ; Ex parte Bmly, 1 Rose, 61 ; Bmly v. Lye, 15 East, 7; Nicholson v. Ricketts, 29 L. J., Q. B. 55. (0 South Carolina Bank v. Case, 8 B. & 0. 427 (15 E. C. L. B.) ; 2 Man k By, 459 (17 B. C. L. R.), s. o. ; Smith t. Craven, 1 C. & J. 507 ; Nicholson v. Ricketts, 29 L. J., Q. B. 55 ; and see Ex parte Bolitho, 1 Buck. 100 ; Swan v. Steele, 7 East, 210; 3 Smith, 192, s. 0. ; and see po««. (u) Hall V. Smith, 1 B. & C. 407 (8 E. C. L. R.) ; 2 D. & R. 484 (18 E. 0. L. R.) ; Clerk V. Blackstock, Halt, 474 (3 B. 0. L. R.) ; March v. Ward, Peake, 130 ; Wilks v. Back, 2 East, 142 ; but see now Ex parte Buckley, In re Clarke, 14 M. & W. 469 ;. 15 L. J., Bktcy. 3, s. G. {y) Thicknesse t. Bromilow. 2 0. & J. 425. (w) Perring v. Howe, 4 Bing.'28 (13 B. C. L. R.) | 12 Moore, 125; 2 C. & P. 401, s. 0. I (%) M'Clae T. Sutherland, 3 B. & B. 36 (77 E. C. L. R.). {y) Cross v. Cheshire, 21 L. J., Exch. 3. (z) See the numerous American authorities on this subject, Byles on Bills, 4th American edition, p. 109. (a) Williamson v. Johnson, 1 B. & C. 146 ; 2 D. & R. 281 ; Faith v. Richmond, 11 A. & B. 339 (39 E. C. L. R.) ; 3 Per. & D. 187, S. 0. ; Forbes t. Marshall, 11 Exch. 166 ; Stephens v. Reynolds, 29 L. J., Exch. 278 ; 5 H. & N. 513, s. c. (6) Kirk v. Blurton', 9 M. & W. 284; but see M'Clae T. Sutherland, 3 E. & B. 36 (77 E. C. L. R.). 126 OP THE CAPACITY OF CONTRACTING PARTIES under the firm of Dry and Co., but only under the firm of Dry and Everett, it was held thart defendant Everett was not bound by a bill accepted by Dry, not for partnership purposes, in the name of Dry and Co.(c)(l) But if a bill be drawn on a firm, and accepted by one partner in his own name for partnership purposes, that acceptance will bind the firm.(c?)(2) It has been held, that as the drawing or accepting of bills '- J *is not in general necessary in a farming or mining con- cern, biljs accepted by one of the partners in such a concern with- out express authority, do not bind the firm.(e) ^ And partners not in trade cannot bind each other by bills. Therefore one attorney, who is partner with another, has not from that relation alone power to bind his copartner by a bill or note.(/) No more have partners carrying on business'as brokers by getting orders on commission and dividing the expenses.(^)(3), (c) Sheppard v. Dry, Norwich, 1840, cor. Parke, B., affirmed in Q. B. Qucere, ■vyhether a partner Eaay not bind his co-partner by signing the true names of the partners, though such names be not the style of the firm. Norton v. Seymour, 3 C. B. 792 (54 E. C. L. R.) ; M'Clae v. Sutherland, aupra. {d) Mason v. Rumsey, 1 Camp. 384. (e) Greeiislade v. Dower, 7 B. & G. 635 (14 E. C. L. R.) ; 1 M. & R. 640 (17 E. C. .L. R.), s. c: Dickinson v. Valpy, 10 B. & 0. 128 (21 E. C. L. R.) ; 5 M. & R. 126; Russell V. Pollett, executors, 1840. But see Brown v. Kidger, 3 H. & N. 853. Unless it be the ordinary and known course of such mining concerns as the defendant's to draw and accept bills. (/) Hedley v. Bainbridge, 2 Q. B. 316 (42 E. 0. L. R.). In America it has been held that the same rule applies to partners in the practice of physic, and to partners in a tavern. See the authorities, Byles on Bills, 4th American edition, p. 109. {g) Yates v. Dalton, 28 L. J., Exch. 69. (1) A promissory note given by one of two partners in the business of farming and coopering, signed " A. B. and C. D." is binding upon both. McGregor v. Cleve- land, 5 Wend. 475. A note made by one partner, in which he says, " I promise to pay," &c., but subscribes the partnership name, " A. B. & Co.," is binding on the firm, and not on the partner alone who executed it. Doty v. Bates, 11 Johns. 544. A note signed by two partners with their individual names, is sufScient to bind the firm. Maynard v. Fellows, 43 New Hampshire, 255. (2) One copartner may bind the firm by a bill of exchange drawn by him in his own name upon the firm for a partnership debt. It may be treated as an accepted bill. Dougal v. Cowles, 5 Day, 511. (3) A. and B. entered into a contract with C. for a conveyance from him to them of a farm, and agreed to pay a part in good negotiable notes, to be endorsed by tbem ; held, that this will not constitute them special partners, so that the indorse- TO A BILL OR NOTE. 127 Creditors ■who are empowered by a deed of arrangement, made betweeen themselves and their debtor, to carry on the trade to satisfy their debts out of- the profits, and to pay over the residue to the debtor, are not partners at all, and therefore are not liable on bills accepted by them in the style of their debtor's firm. (A) For a creditor, -who stipulates that he will be paid out of the profits only, gains nothing beyond what he already had as a creditor : on the contrary, he only abandons some other sources from which he might have obtained satisfaction. As a creditor, he could have satisfied himself out of the whole property of his debtor including profits. Even if a partner exceed the authority conferred by the common law and pledge the partnership credit on a negotiable security for his own private advantage, his copartners are liable to a holder for valae without notice. And if there be a good defence against one of several partners or co-plaintifis suing on a bill, note, or other joint contract, it is a good defence against all.(i) Although the *copartner or co- rifApi-i plaintiff to whose right to sue the objection applies have been guilty of a fraud on his copartners and companions, and they have been innocent of it. " Are they not bound by his acts," says Lord Ellenborough "when they are to recover by his strength. "(/) (A) Cox V. Hickman, 8 House of Lords Cases, 268 ; 9 C. B., N. S. 47 (99 B. C. L. R.) ; 30 L. J., C. P. 125, s. o. This case has been supposed to shalie the au- thority of Waugh T. Carver. See Buller v. Sharpe, Exch. Ch. M. T., 1865. The law as to the effect of a participation of profits iri constituting a partnership is now partially altered by stat. 28 & 29 Vict. c. 86. (i) Aistley v. Johnson, 5 H. & N. 137 ; Brandon v. Scott, 7 E. & B. 234 (90 E. C. L. R.). (/) Richmond v. Heapy, 1 Stark. 204. ment of the names of both by one, without' the other, will bind both. Ballou v. Spencer, 4 Cowen, 163. A partner in the practice of physio, has no power to bind his copartner by the execution of a note in the name of the firm, for the purpose of raising money for his own accommodation. Crosthwait -i. Ross, 1 Humph.' 23. The rule that a note given by one partner in the partnership name, for his individual debt, is good against the firm in the bands of a bond fide holder, applies only to notes of mercantile partnerships, and does not apply to those of partnerships for keeping tavern. Cocke v. Branch Bank, 3 Alabama, 175. The law presumes that the holder, if he inquired at all into the partnership of the makers, must have received information that they were not partners in a mercantile trade, but only in the business of tavern-keeping. This aacertained, he took the note at his peril. Ibid. 128 OF THE CAPACITY OF CONTRACTINa PAKTIES The defrauded partner's remedy (at least during his companion's lifetime) must he in equity. (A) Thus if one partner assume to re- lieve an acceptor of his responsibility, the firm lose their action. Two bills had been drawn by a partnership, and accepited, and it was proved that the value received for the acceptance had been employed in taking up other acceptances for the accommodation of the partnership ; the promise of one partner, in fraud of his co- partners, to provide for the acceptances, was held to be a sufficient drfence to an action by them against the acceptor. (?) So, where D. drew a bill in his own name, and gave the acceptor a memorandum, in writing, that he would provide for it when due, having indorsed it to the firm of A., B., 0. and D., it was held that the firm were bound by his acts, and could not recover against the acceptor, (m) But, if the party taking a bill or note of the firm knew, at the time, that it was given without the consent of the other partners, he cannot charge them.(w) And the taking a joint security for a separate debt raises a presumption that the creditor who took it knew that it was given without the concurrence of the other part- ners.(o) If there existed fraud and collusion between the partner and his creditor, the bill is void in the hands of the fraudulent holder, not only against the partnership, but against other parties to the bill.(j») But securities which may be unavailing against the p^ , »-| firm, *when in the hands of the party privy to the transac- tion, will nevertheless bind them when in the hands of an (A) See Jones v. Yates,' 9 B. & C. 539 (17 E. C. L. E.) ; Gordon v. Ellis, 7 M. & G. 607 (49 E. C. L. p.; 2 C. B. S21 (52 E. C. L. R.). (l) Richmond v. Heapy, 1 Stark. 20 i (2 E. 0. L. R.). (m) Sparrow v. Chisman, 9 B. & C. 241 ; 4 M. & R, 206. («) " The doctrine of the text," says Mr. Sharswood, " is sustained by the whole current of the American authorities." See them digested in the 4th American edition of Byles on Bills, hy the Hon. George Sharawood, p. 110. 1856. (o) Richmond v. Heapy, 1 Stark. 202 ; Arden v. Sharpe, 2 Esp. 524 ; Barber r. Backhouse, Peake, 61 ; and see Wallace t. Kelsall, 7 M. & W. 264 | Jones v. Yates, 9 B. & C. 532 ; Jacaud v. French, 12 East, 317 ; Gordon v. Ellis, 7 M. & G. 607 ; Laveson v. Lane, M. T. 1862 ; 32 L. J., N. S. 32, 0. P. ; 13 0. B., N. S. 278 (106 E. 0. L. R.), establish this view of the law. ' But when the bill is in the hands of a trans- feree for value, the onus of proof may be shifted. {p) Ex parte Bonbonus, 8 Ves. 540 ; Wells v. Masterraan, 2 Esp. 731 ; Green v. Deakin, 2 Stark. 347 (3 E. C. L. R.); Ex parte Gouldney, 2 6. & J. 118j 8 L. J., Bktcy. 1, s. 0. TO A BILL OR NOTE. 129 innocent indorsee for value. (g') But in sucli a case it lies on the plaintiff to show that he gave value. (r)(l) (?) Ridley v. Taylor, 13 Bast, 175. (r) Hogg T. Skene, 34 L. J., 0. P. N. S. 153. (1) The doctrine of the text is sustained by the whole current of the American au- thorities. A note made by one partner in the name of the firm will be presumed to hare been 'made in the course of partnership dealings ; and that it was given for the indiTidual debt of one of the partners, is matter of defence which must be proved tty the party suggesting it. This is so even though the partnership be limited to a par- ticular branch of business. Doty V. Bates, 11 Johns. 544; Barrett v. Swann, IT Maine, 180 ; Ensminger v. Marvin, 5 Blackford, 210 | Knapp v. McBride, 1 Al«bama, 19 ; Hamilton v. Summers, 12 B. Monroe, 11. Where a person receives a partner- ship note for the individual debt of a partner, he is chargeable with notice, and can- ■ not enforce payment of the note against the other members of the firm. Miller v. Manice, 6 Hill, 115 ; Maudlin v. Branch Bank, 2 Alabama, 502 ; Stainer v. Tysen, 3 Hill, 279 ; Noble v. McClintock, 2 Watts & Serg. 152 ; Smyth v. Strader, 4 Howard (U. S.) Rep. 404 ; Williams v. Gilchrist, 11 New Hamp. 535. Such a note is bind- ing when given with the assent of the other partners, and such an assent may be implied from facts and circumstances. Gansevoort v. Williams, 14 Wendell, 133. Assent must be clearly shown and not left to be inferred from vague and slight cir- , cnmstances. Kenneysv. Richards, II Barbour, S. C. Rep. 312 ; McKinney v. Brigiit, 1 6 Penna. State Rep. 399. If the firm afterwards should with knowledge reap the fruits of the transaction, they would be liable, as where an administrator gave the note of his firm for a debt of his intestate, and afterwards applied to thepartnership money which belonged to the estate. Richardson v. French, 4Metcalf, 577; Whitaker v. Brown, 11 Wendell, 75. Though the payee of a partnership note believed that the proceeds of the note were to be applied to the individual debts of one of the firm, the note would still be binding on the firm, if the proceeds were in fact used by the firm. Hamilton V. Summers, 12 B. Mon. 11. The admissions of the partner who gave the note are not evidence to show the assent of the partnership. Hickman v. Reineking, 6 Black- ford, 387. The bond fide holder of such a note, however, is undoubtedly protected. There must be express notice or such gross negligence in the holder as is equivalent to it. If one of several partners obtain a loan of money for his individual use, by giving the note or check of the firm, but without their authority, the transaction will nevertheless bind all the partners, unless there be something in it to induce the lender to suspect that the money is not borrowed for thein^enefit. Miller v. Manice, ■6 Hill, 114. See Long v. Carter,.3 fedell Law Rep. 238 ; Duncan v. Clark, 2 Rich- ardson, 587. An indorsement by a partner of his separate accommodation note with the name of his firm, is a sufficient indication of the nature of the transaction, to make it the duty of the holder to inquire into his authority to use the firm name for the occasion, unless there are circumstances from which the authority can be implied. Tanner v. Hall, 1 Penna,. State Rep. 417. " A partner,," says 0. J. Hosmer, " strictly speaking, has an implied authority by virtue of the partnership connection to perform acts, and make contracts, only within the limits of the partnership covenant. But as persons dealing with him cannot always know when he is acting within the sphere allotted him, and when for his own use, those who are not guilty of gross negligence and act bonS, fide are protected in their contracts, whatever may be the concealed 9 130 OF THE CAPACITY OP CONTRACTING PARTIES Articles of agreement between the partners, that no one partner shall draw, accept, or riegotiate bills of exchange, will not protect the firm against bills drawn, accepted, or indorsed, in violation of the agreement, if the holder had, at the time of taking the bill,(s) no notice of the stipulation, and can show that he gave value. But if notice of ^uch agreement can be brought home to the holder, or if, in the absence of such agreement between the partners, the other partners have given him notice that they will not be respon- sible for bills circulated by their copartner, the firm cannot be («) See Hogg v. Skene, supra. obliquity of his conduct. Hence, if he raise money on a bill or note, signed or in- dorsed in the name of the firm, the partnership is bound, although he performed the act with a view to his own individual use. On the same principle, if the person receiving the bill had knowledge that he was violating his duty to his partners, yet if the bill came bonS. fide into the hands of a purchaser, he acquires a right to sub- ject the partnership. Public convenience demands the establishment of these principlesi If a secret fraud of the nature above mentioned were to vitiate a note or bill, it would demand inquiries which could not often be made or satisfied, before either of them could safely be received, and thus would operate as a pernicious im- pediment to their free circulation. But neither justice nor convenience requires, that the person who has knowledge of the fraud, or is ignorant through gross negli- gence, should have a right to subject a partnership by the contract of one of the partners made for his own benefit. If, therefore, at the time he received the in- strument from one of the partners, he knew, or had reason to believe, that it was in payment of the partner's debt, or for his own peculiar advantage, aside of the part- nership benefit, he acquires no right by this attempted prostitution of the firm." New York Firemen Ins. Co. v. Bennett, 5 Conn. 574. It is not within the general scope of the authority of a partner to give guarantees, or become surety, or issue paper for the accommodation of third persons, in the name of the firm. Where this appears on the face of the transaction, or is l^nowu to a, subsequent holder before taking it, the note is not binding, unless he can show the assent or subsequent ratification of the other partners. Bank of Rochester v. Bowen, 7 Wendell, 158; Sweetser v. French, 2 Gushing, 309 ; Andrews v. Planters Bank, 7 Smedes & Marshall, 192 ; Langau v. Hewitt, 13 Ibid. 112 ; Rollins v. Stevens, 31 Maine, 454 ; Lang v. Waring, 17 Alabama, 145. Nevertheless a bona fida holder, ' without notice, of an accommodation note, indorsed with the name of a firm by one of the members without the assent of the other, is entitled to recover from the partnership. Austin v. Vandermark, 4 Hill, 259 ; Maudlin v. Branch Bank, 2 Ala- bama, 502 ; Catskill Bank v. Stall, 15 Wendell, 364 ; s. c. 18 Wendell, 466 ; Wells T. Evans, 20 Wendell, 251 ; s. o. 22 Wendell, 324 ; Emerson v. Harmon, 14 Maine, 271 ; Waldo Bank v. Lambert, 16 Maine, 416 ; Beach v. The State Bank, 2 Garter (Indiana), 488. On proof, however, of the manner in which the note was made or indorsed, in fraud of the partnership, the holder will be required to show his bona fides, and the value he gave for it. Bank of St. Alban's v. Guilliland, 23 Wendell, 311. TO A BILL OR NOTE. 131 charged, though the bill was given in the course of partnership transactions. (i) The proper mode of t-aising the defence of unauthorized and fraudulent acceptance by one. of several' partners and notice to the plaintiff, is by a traverse of the acceptance, (m) If the defendants show that the bill was circulated in violation of partnership articles, they will thereby put the plaintiff to prove that he or some one under whom he claims gave value for it.(y) But it has been held by the Court of Queen's Bench, after confer- ence with the Judges of the other Courts, that in order to main- tain the action, where it appears that one partner has accepted in fraud of his copartners, and where issue is taken on thp acceptance, it is not necessary for the plaintiff to prove that he gave value, but the defendants must affect the plaintiff with notice of the fraud,(w) or otherwise impeach his title. If a man be at one and the eame time a partner in two distinct firms, but each firm use the same style, and he draw *a bill ^ ,„ . r*481 in the common name of both firms, it has been held, that '- -• an indorsee may charge either firm at his election.(2;) But where the name of the firm is the same as the name of the individual, and the bill is drawn by the individual for his separate benefit, perhaps the firm is not pledged.(y)(l) {t) Galway v. Mathew, 10 East, 264; 1 Camp. 403, s. c. . («) Jones V. Oorbett, 2 Q. B. 828 (42 E. 0. L. R.) ; Grout v. Bathoven, 1 Exch. 382. (v) Grant v. Hawkes, Chitty on Bills, 42 ; Hogg v. Skene, 34 L. J., C. P. 153. i (w) Musgrave v. Drake, 5 Q. B. Rep. 185 (48 E. 0. L. R.). The case of Grant v. Hawkes, however, does not appear to have been brought to the notice of the Court, though, perhaps, distinguishable. And in a recent case in the Court of Common Pleas, Mr. Justice Willes intimated his dissent from the doctrine laid down in Mus- grave V. Drake. Hogg v. Skene, 34 L. J., C. P. 153. {x) Baker v. Charlton, Peake's N. P. C. 80 ; M'Nair v. Fleming, Mont. 32 ; Swan V. Steel, 7 East, 210; 3 Smith, 109, s. 0. ; see, however. Ex parte Buckley, In re Clarke, 14 M. & W. 469 ; 15 L. J., Bktcy. 3, s. 0. (y) See Ex parte Bolitho, 1 Buck. 100, and the observations of Bayley, B., on that case in Wintle v. Crowther, 1 C. & J. 316; 1 Tyr. 210, s. 0.; and see Furze v. Bharwood, 11 L. J., Q.B. 121; 2 Q. B. 388 (42 E. C. L. R.), s. 0., and Ex parte Buck- ley, supra. So, in America it has been held that prim4 facie the firm are not bound. Byles on Bills, 4th American edition, p. 113. (1) A note In common form, signed by an individual in whose name a partner- ship is carried on, and who at the same time openly transacts business on his own account, does not primS. facie bind his copartners. Manufacturers and Mechanics 132 OF THE CAPACITY OF CONTRACTING PARTIES If a new partner be introduced into a firm, an acceptance by the old partners for an old debt in the name of the new firm will not, in the hands of the party taking it and cognizant of the facts, bind the new partner.(s) The taking security from one of several partners, joint makers of a note, or acceptors of a bill, will, in general, discharge the other copartners.(a) But where one of three partners, after a dis- solution of partnership, undertook to pay a particular partnership debt on two bills of exchange, and that was communicated to the holder, who consented to take the separate notes of the one part- ner for the amount, strictly reserving his right against all three, and retained possession of the original bills, it was held that, the separate notes having proved unproductive, he might still resort to his remedy against the other partners: and that the taking under these circumstances the separate notes, and even afterwards renewing them several times successively, did not amount to satis- faction -of the joint debt.(J)(l) Where the circumstances were such that the partner had no (2) ShirrefF v. Wilts, 1 East, 48. (o) Evans v. Drummond, 4 Esp. 89 ; Thompson v. Perceval, 5 B. & Ad. 923 (22 E. 0. v. R.) ; 3 N. & M. 667 (28 E. C. L. R.), s. 6. (i) Bedford v. Deakin, 2 B. & Aid. 210 ; 2 Stark. ITS (3 E. 0. L. K.), s. c. Bank v. Winship, 5 Pick. 11. A note given in the individual name of one partner, is primd facie deemed his individual xibUgation, unless his partner be a dormant partner. Scott v. Oolmesnil, T J. J. Marsh. 416. To render a firm responsible for a note given by one member thereof in bis own name, it must appear that the credit was given to the firm, and that the money obtainea by the note went to the business of the firm, otherwise it will be treated as an election by the creditor to trust to the responsibility of the maker of the note alone. Foster v. Hall, 4 Humph. 346 In re Warren, Daveis, 320 ; Buckner v. Lee, 8 Georgia, 285. Where an individual carried on business in his own name, and with others as partners under the same name, a note drawn to that name is presumed to have been given to him individually. Boyle v. Skinner, 19 Missouri, 82. (1) The note of one partner, not under seal, taken for a partnershi{> debt, will not discharge the other partners, unless so understood ; and such note will not operate to discharge dormant partners, not known to the creditor. Nichols v. Cheairs, 4 Sneed , 229. The note of one partner in satisfaction discharges the others. Stephens V. Thompson, 2 Williams, 11. Whether the note of an individual partner was accepted in satisfaction of the partnership debt is a question of fact for the jury. Bonnell v. Chamberlin, 26 Conn. 457 ; Tyner v. Stoops, 11 Indiana, 22. \ TO A BILL OE NOTE. 133 power to bind the firm by a bill, subsequent recognition of the act will be equivalent to previous authority.(c) Secondly, as to the case of a secret or dormant partner. A dormant partner, whose name does not appear, is bound by bills drawn, accepted, or indorsed by his copartners in *the name of the firm, and not only when the bills are negotiated for L J the benefit of the firm, but when they are given by one of the partners for his own private debt, provided the holder were not aware of this circumstance :() But as an answer to an action on a bill or note, drunkenness must be specially pleaded.(g') P^(,n-| *The contracts of a married woman are void in law. Without authority from her husband, therefore, she ^can- not at law charge either him or herself, by making, drawing, ac- cepting, or indorsing, negotiable instruments ;(r) not even if she live apart from him, and have a separate maintenance secured by deed.(s) Nor after a valid divorce, a, mensdet thoro ;(t) though it is otherwise after a complete divorce, d vinculo matrimonii, which annuls the marriage to all purposes. And even if she be a sole 'trader in London by the custom of the city, she is not liable at all in the superior Courts, and in the city Courts her husband must be (6) At least by a person who had notice. Molton v. Oamroux, 2 Exch. 487 ; iBxch. 17 s. 0. ■{p) Gore V. Gibson, 13 M. & W. 623. Marriages have been set aside on this giound. Browning v. Reame; 2 Phil. 69. (y) Ibid. (r) She cannot, lilie an infant, convey a title to third persons. Barlow v. Bishop, 1 East, 432 ; 3 Esp. R. 266, s. 0. (s) Mai/shall v. Rutton, 8 T. R. 545. In one case the Conrt of 0. P., refused to discharge out of custody a married woman, who had been arrested as the drawer of a bill of exchange. Jones' v. Lewis, 7 Taunt. 54 (2 B. 0. L. R.) ; 2 Marsh.' 385 (4 E. C. L. R.), s. 0. ~ * _ , {t) Lewis V. Lee, 3 B. & 0. 291 (10 E. C. L. R.) ; 5 D. & R. 90 (16 E. C. L. R.), s. o. {u) Beard v. Webb, 2 B. & P. 93. w (1) Mental incapacity at the time of contracting, produced by drunkenness or any other cause, is a good defence against a contract, whether by deed or parol. Jenners V. Howard, 6 Blackf. 240. Whenever a man loses his memory and understanding, he is entiled to legal protection, whether such toss is occasioned by his own impru- dence or misconduct, or by the act of Providence. Bliss v. The Railroad, 24 Ver- mont, 424. A note given by one incapable to contract from drunkenness, is not merely voidable but void, and is incapable of confirmation by the subsequent con- duct of the maker. Barkeley v. Gannon, 4 Richardson, 136. TO A BILL OR NOTE. 153 joined for conformity, though execution will be against the wife alone.(M)(l) And it is conceived, that though husband and wife are in general liable for the wrongs and frauds perpetrated by the wife, yet they are not liable for a fraudulent representation by her which is parcel of a contract. (t)) Nor can a married woman be estopped by her own representation that she is discovert, (w) But an acceptor may be estopped from disputing her competency.(2:) But if a married woman have a separate estate, and make a pro- missory note, or accept a bill of exchange, she is liable in equity.(2/) And if, while she has a separate estate, she gives a security for money lent, and after her husband's death promise to repay it, such promise is binding at law on herself and her executors.(s) But if at the time the note was given she had not a separate estate, no such promise, after the death of her husband, will be valid.(a) A promissory note given by a husband to his wife for money *ad- r;,i/.q-i vanced by her to him out of her separate estate constitutes a declaration of trust in favor of the wife. (6) (w) Berrd v. Webb, 2 B. & P. 93. (v) Liverpool Association v. Fairhurst, 9 Exch. 422 ; Wright t. Leonard, II C. B., N. S. 25S (103 E. C. L. R.). (w) Cannam v. Parmer, 3 Excli. 698. (x) See the Chapter on Acceptance. {y) Bullpin v. Clarke, 17 Ves. 365; Hulme v. Tenant, 1 Bro. 0. 0. 16 ; Stewart V. Kirkwall, 3 Madd. 387 f Johnson v. Gallagher, 30 L. J., Cha. 298. Query, where there is a restraint on anticipation. (z) Lee T. Muggridge, 5 Taunt. 36 (I E. C. L. R.). ■{a) Lloyd v. Lee, 1 Stra. 94 ; Littlefield t. Shee, 2 B. & Ad. 811 (22 E. C. L. B.). (b) Murray v. Glasse, 23 L. J., Cha. 126. (1) A promissory note made by a married woman during, coverture is void, and a promise to pay the same made by her after her husband's death, without any. new consideration moving her thereto, will not support an action against her. Tance v. Wells, 6 Alabama, 737. Where the wife purchased goods without the knowledge of her husband, and gave her note for them, the husband was held not to be liable. Moses V. Fogartie, 2 Hill, (South Carolina), Rep. 335. A wife may be agent for her husband, though they keep separate stores, and bind him by notes signed in her own name. Abbott v. Mackinley, 2 Miles, 220. If a husband give his wife authority to give notes, the notes, to be binding on the husband, must purport on their face to have been given by the wife, as agent or on the behalf of the husband. Minard v. Mead, 7 Wend. 68. A feme covert is not liable on a note executed by herself, even though her husband has been absent in another state for many years. Chouteau v. Merry, 3 Missouri, 254, 2d ed. 182. 154 OF THE CAPACITY OF CONTRACTING PARTIES And if the husband has been transported, and is not returned^ to fhis kingdom, whether or no the term of his transportation be ex- pired ;(c) or if he be an alien, and never was within the king- dom ;((2) or if the husband has been abroad and not heard of for seven years, after which period the legal presumption of his death arises : — ^in afly one of these three cases she is liable in law for her contracts, as a single woman. Where the husband was transported for fourteen years, but instead of going abroad was confined in the hulks at Portsmouth, it was held that his wife, carrying on busi- ness in her own name, for the benefit of the family, might be made bankrupt, and that a bill accepted by her under such circumstances, constituted a good petitioning creditor's debt.(e) Where a bill or note is given to a single woman, and she mar- ries, the property vests in her husband, and he alone can indorse it;(/) and husband and mte must join in the action upon it;(^) ■but if payable to order, marriage may operate as .an indorsement, so as to enable the husband to sue alone.(A) If not recovered upon, or reduced into possession during their joint lives, it reverts to the woman, if she survive or goes to the husband as her administrator, if he survive, (i) If after marriage the bill or note be made to the wife alone the interest vests in the husband ; he alone can indorse it.(A)(l) And (c) Carrol V. Blencow, 4 Esp. 21; Sparrow v. Carruthers, cited 2 W. Bla. IISY, and more fully 1 T. R. 1. See Derryv. Duchess of Mazarine, 1 Ld. Raymi 147. (d) Kay v. Duchess de Pienne, 3 Camp. 123. (e) Ex parte Franks, 1 Ring. 762 (20 B. C. L. R.). ^ (/) Connor v. Martin, 3 Wilson, 5 ; 1 Stra. 516, s. o. (ff) Com. Dig. Baron & Feme, N. (A) MacNeillage v. Holloway, 1 B. & Aid. 218. As to some observations of Lord Ellenborough, in this case, see the judgment of the Court of Queen's Bench, in Hart V. Stephens, 14 h. J., Q. B. 149 ; 6 Q. B. 943 (51 E. C. L. R.), B. 0. (i) Co. Litt. 351, b. ; Coppln v. , 2 P. Wms. 497 ; Day v. Padrone, 2 M. & S.'396 (28 E. C. L. E.). (k) Conner v. Martin, 1 Stra. 516 ; 3 Wils. 5, s. o. ; Barlojr t. Bishop, 1 East, 433 I Mason v. Morgan, 2 Ad. & Ellis, 30 (29 E. C. L. R.) ; 4^ev. & M. 46 (30 E. C. L. R.), s. 0. ; but the wife may convey a title by indorsing in her husband's name, by his authority. Ibid. And under her husband's authority, she may indorse in her (1) A note made payable to a married woman, is in law a note to the husband,- and becomes instantly his property ; and her indorsement trahsfers no property in the note. Sava,ge v. King, 17 Maine, 301; Shuttleworth v. Moyes, 8 Mass. 229; Jones V. Warren, 4 Dana, 333 ; Tryon v. Sutton, 13 California, 490 ; Holland v. Moody,* 12 Indiana, 170. A wife, with the consent of her husband, may indorse in her own TO A BILL OR NOTE. 155 his indorsement is effectual,' though the *instrument he p^„.^ part of her separate estate, and be indorsed by her husband '" "^ in fraud of her, to an innocent holder for value. (Z) But if the hus- band die without a recovery on it, or reducing it into possession, the note belongs, at law, to the wife, and not to the husband's ex- ecutors, and she must bring the action, (m) If the consideration of the note were the husband's money, it is conceived that the wife would be a trustee for the husband's executors.(w) The wife may join in an action on the instrument ;(o) but the husband may sue alone.(p) If he sue alone, he lets in, by way of set-off, debts due own name. Prestwick v. Marshall, 7 Bing. 565 (20 B. C. L. R.) ; 5 M. & P. 513 ; 4 C. & P. 594 (19 E. 0. L. R.). And If, after an indorsement in her own name, the acceptor, seeing the bill with the itidorsement upon it, promises to pay, that amounts to an admission by the acceptor that the indorsement was by the husband's autho- rity. Cotes V. Davis, 1 Camp. 485. Where in an action by the indorsee of a bill - against the acceptor, the declaration alleged the bill to have been drawn and in- dorsed to the plaintiffs by a woman, to which the defendant pleaded that she was married, a replication that she drew and indorsed as the agent of her husband was held no departure and good. Prince v. Brunatte, 1 Bing. N. C. 435 (2V E. 0. L. E.) ; 1 Scott, 342 ; 3 Dowl. 382, s. o. {V) Dawson v. Prince, 27 L. J., Chanc. 169. Query, whether the fact of a bill being drawn in favor of a married woman be notice actual or constructive, that it is part of her separate estate. (ot) Betts V. Kimpton, 2 B. & Ad. 273 (22 E. C. L. R.) ; Richards v. Richards, 2 B. k Ad. 447 ; Gaters v. Madely, 6 M. & W. 423 ; Hart v. Stephens, 14 L. J., Q. E. 148 ; 6 Q. B. 937 (51 B. C. L. R.), s. c. ; Scarpellini v. Atcheson, 14 L. J., Q. B. 333 ; Howard v. Cakes, 18 L. J., Bxch.. 485 f 3 Bxch. 136, s. c. See this last case as to 'the form of pleading. Coverture of the plaintiff is only pleadable in abatement. Guy- ard V. Sutton, 3 C. B. 153 (54 B. C. L. R.). (b) Philliskirk v. Pluckwell, 2 M. & Sel. 396. (o) Philliskirk et Uxor v. Pluckwell, 2 M. & Sel. 393 ; Arnould v. Revoult, 1 B. & B. 443 (5 E. q. L. R.) ; 4 Moore, 70 (4 B. 0. L. R.), s. 0. {p) Burrough v. Moss, 10 B. & C. 858 (21 E. 0. L. R.) ; 5 M. & R. 296, s. c. name a promissory note made payable to her daring coverture, and pass a good title to the indorsee. Stevens v. Beals, 10 Gushing, 291 ; Slawson v. Loring, 5 Allen, 340. Notes payable to bearer may be passed by delivery by a feme covert who owned them. Cobb v. Duke, 36 Mississippi, 60. h. feme covert may indorse in her maiden name, a note which was left her before marriage, provided her husband's assent be given. Miller v. Delamater, 1 2 Wend. 433. A note given to an unmarried woman, and by her subsequently delivered in free gift to her husband, may be sued on by him in his own name. White v. Callinan, 19 Indiana, 43. A second indorser cannot, in an action against him on the bill, dispute the legal capacity of the payee to indorse it, on the grounds that she was a married woman. Prescott Bank v. Caverly, 7 Gray, 217. When a man transmitted a note to his wife drawn to her order which she in- dorsed in her own name and sold by his authority, he was held liable as indorser; Hancock Bank v. Joy, 41 Maine, 568. 156 OF THE CAPACITY OF CONTEACTINS PARTIES from himself ; if he joins his wife in the action, perhaps he lets in, as a set-off, debts due by her dum 8ola.[q) If a note be given after marriage to husband and wife jointly as payees, it is conceived that the legal interest in the note survives to the survivor, so held as to an investment in stock. (r) What amounts to a reduction of the wife's chose in action into pos- session is a question of considerable nicety. It is conceived that indor- sing a note over is such a reduction.(s) But the bankruptcy of the husband is not a reduction of the wife's choses in action into possess- ion ; and therefore the assignees of a bankrupt cannot maintain an r*fi'i1 *a'Ction in their own names alone, on a promissory note made to the wife of the bankrupt before her marriage.(*) Nor is the receipt of interest by the husband(i*) a reduction into possession. (1) .(?) Ibid. (r) Re Gadbury, 32 L. J. 380. (s) Scarpellini v. Atcheson, 14 L. J., Q. B. 333 ; Y Q. B. Rep. 864 (53 E. C. L. E.), s. c. (?) Sherrington v. Yates, in error, 12 M. & W. 855, reversing Yates v. Sherring- ton, 11 M. & W. 42. («) Hart T. Stephens, 6 Q. B. 931 (51 B. C. L. R.). (1) Legg T. Legg, 8 Mass. 99 ; Howes v. Bigelow, 13 Mass. 384 ; Stanwood v. Stan- wood, 17 Mass. 5T ; Tucker v. Gordon, 5 N. Hamp. 564; Hayward v. Hayward, 20 Pick. 517 ; Strong T. Smith, 1 Metcalf, 476; Miller's Estate, 1 Ashmead, 323 ; Kit- zinger's Estate, 2 Ashmead, 455 ; Killcrease v. Killcrease, 7 Howard (Miss.), 311; Taliaferro v. Taliaferro, 4 Call. 83 ; Bell v. Bell, 1 Kelley, 637 ; Clarke v. M-Creary, 12 Smedes & Marshall, 347. An assignment by a husband of a present interest of bis wife in. personal property is a sufficient reduction to possession, and passes the property to the assignee. Browning v. Headley, 2 Rpbinson, 340 ; Forrest v. War- rington, 2 Dessausure, 254; Mattheney v. Guess, 2 Hill. Ch. (S. 0.) 63 ; Thomas v. Kelso, 7 B. Monroe, 521 ; Rogers v. Bumpass, 4 Iredell Ev. 385 ; Barnes v. Pearson, 6 •Iredell Bq. 482 ; Swoyer's Appeal, 5 Barr, 377 ; Siter's Case, 4 Rawle, 468. An assignment under an insolvent law, being a voluntary act by the husband, in order to entitle himself to the benefit of the law, defeats the wife's right of survivor- ship. Richwine v. Keirn, 1 Penna. Rep. 373 ; Glasgow v. Sands, 3 Gill. & Johns. 96. As to assignment in bankruptcy, see Poor v. Hazleton, 15 N. Hamp. 564. An assignment by the husband of the wife's choses in action as collateral security does not deprive her of the right of survivorship if he die before they are reduced to pos- session. Hartman v. Dowdel, 1 Rawle, 279 ; Latourette v. Williams, 1 Barbour, 9. A husband's disclaimer of conversion to his own use, at the time of reducing his wife's chose in action to possession, may i^e established by his subsequent admis- sions, but they must be deliberate, positive, precise, clear, and consistent. Gray's Estate, 1 Barr, 327 ; Timbers v. Katz, 6 Watts & Serg. 290"; Hind's Estate, 5 Whar- ton, 135. A husband, who survives his wife, is entitled to all her choses in action, whether reduced into his possession in his lifetime or not ; and in case of his death TO A BILL OR NOTE. - 157 If a single -wpman, being a party liable on a bill or note marries, her husband becomes responsible, and they must be sued jointly.(?;) If (the debt being still unsatisfied) he dies, she is liable, and not his ex- ecutors ; if she dies, her representatives are liable, if therebe assets, but not her husband, except in his representative capacity.(a:) Where a joint and several promissory note was, during marriage, given to a feme executrjx, by her husband and two other persons, it was held that after her husband's death she might sue the other makers.(«/) And though a note given by a wife to her husband is void, yet, if indorsed over by the husband, it is valid as between the husband and the indorsee.(s). Payment of a sum due on a bill or note to a married woman will not discharge the party making it, unless she had authority, express or implied, to receive payment. It should be made to her husband, (a)(1) By attainder the felon's personal property and choses in action vest in the crown, without ofiBce found. The felon, till he has un- dergone his punishment, is incapable of taking. Therefore, if a bill be indorsed to him, he acquires no title to it.(6) A contract in favor of an alien enemy not residing in this country by the king's licence, is void at law and in equity. Hence a bill drawn by an alien enemy on a British subject in England, and indorsed to a British subject abroad cannot be enforced even after the restoration of peace.(c) *In general, a corporation can only contract by writing under their common seal. L " J But to this rule there are exceptions. (c^) And among them is (v) Mitchinson v. Hewson, 7 T. K. 348. [x) Ibid. (V) Richards v. Richards, 2 B. & Ad. 447 (27 E. 0. L. R.). (z) Holy V. Lane, 2 Alk. 182. (a) Bayley, 256. (6) Bullock T. Dodds, 2 B. & Aid. 258. (c) Willison v. Patterson, 7 Taunt. 439 (2 E. C. L. R.) ; 1 Moore, 333, s. o. | Bran- don V. Nesbitt, 6 T, R. 23. (d) The reader will find them enumerated in the case of East London Water- they go to his personal representatives. Whitaker v. Whitaker, 6 Johns. 112 ; Revel T. Revel, 2 Dev. & Bat. 272 ; Peyer v. Karwen, 2 Dessaus. 419 ; Lee v. Wheeler, 4 Georgia, 541. (si) Thrasher v. Tuttle, 9 Shepley, 335. 158 or THE CAPACITY OF CONTRACTING PARTIES the power of issuing bills or notes enjoyed by a company incorpo- rated for the purposes of trade, the very object of whose institu- tion requires that they should exercise this privilege.(e)(l) But a company incorporated for carrying on public works is not a corporation within the above exception. (/) .; u Without a special authority, express or implied, a corporation has no "power to make, indorse, or accept bills or notes. (^) And the defence may be raised. by demurrer to the declaratioH(ii), or, if there be a power not duly exercised,' by a general traverse. («') A corporation may, like natural persons, sue in assumpsit. The ivorka' Company v. Bailey, 4 Bing. 283 (13 E. 0. L. E.) ; and see Henderson t. Australian Company, 5 E. & B. 409 (85 E. C. L. E.) ; Haigh v. North Bierley Union, 1 B., B. & B. 8V3 (96 B. C. L. R.). (e) Broughton v. Manchester Waterworks' Company, 3 B. & Al. 1 (5 E. C. L. E.). (/) Ibid. ; Overend, Guruey & Co. t. Mid Wales Railway, C. P., B. T. 1866. Iff) Ibid. p. 8, Bayley, J. (A) Ibid. (i) Hill V. Manchester & Salford Waterworks' Company, 5 B. & Ad. 866 (7 E. C- L. R..). (1) The old doctrine that a corporation can contract only under its corporate seal is now repudiated. Chestnut Hill Turnpike Co. •v. Rutter, 4 Serg. & Bawle, 16 ; Bank U. S. v. Dandrldge, 12 Wheat. 64; Bank of Columbia v. Patterson, 1 Cranch, 299 ; Fleckner v. Bank C S., 8 Wheat. 338 ; Hamilton v. Lycoihing Insurance Co., 5 Penna. State Rep. 339. Corporations carrying on business under no restraining acts, may make promissory notes and draw bills of exchange when these are the usual and proper means to accomplish the purpose of their organization. Lucas t. Pitney, 3 Butcher, 221 ; Came v. Brigham, 39 Maine, 35 ; Clark v. School District, 3 Ehode Island, 199; Mitchell T. Eome Railroad Co., 17 Georgia, 574; Hart t. Ins. Co., 21 Missouri, 91. An insurance company may rnake a valid promissory note. Barker t. Mechanic Ins. Co., 3 Wend. 94. A note in the form " I, G. C. L., trea- surer" of a corporation, " promise, &c.,'' is the note of the corporation. Mann v. Chandler, 9 Mass. 335.- But see Tucker v. Bass, 5 Mass. 164. Power to advance money for a corporation will not authorize signing a note for them. Webber v. Williams College, 23 Pick. 302. A factor employed by the general' agent of a cor- poration to sell the goods manufactured and to purchase stock, has power to buy on credit, but not to give the note of the corporation. - Emerson v. Providence Manu- facturing Co., 12 Mass. 237. The general agent of a corporation can give their note for purchases necessary to carry on their business. Odiorne v. Maxcy, 13 Mass. 178; White v. Westport Manufacturing Co., 1 Pick. 215; Butts v. Cuthbertson, 6 Georgia, 166. A bill of exchange directed to "John A. Wells, Cashier Farmers and Mechanics Bank of Michigan," and accepted by writing across the face thereof, " Accepted, John A. Wells, Cashier," is drawn upon and accepted by the bank, and not by Wells in his individual capacity. Farmers and Mechanics Bank v. Troy City Bank, 1 Douglas, 457. A corporation authorized by its charter to employ its stock solely in advancing money upon goods, and the sale of such goods on commission,, may lawfully accept bills drawn on account of future consignments. Munn v. Com- mission Company, 15 Johnson, 44. TO A BILL OR NOTE, 159 old doctrine that when a corporation is plaintiff the consideration must not be executory, so that promises by it need to be alleged,(^) seems to be overruled. (Z) And a corporation is liable to be sued in. the ordinary forms of action, on negotiable instruments, where- ever it has the power to issue them.(??i)(l) The capacity of corporations and banking compainies to make, draw or accept negotiable instruments, is further narrowed by the following enactment, contained in the various statutes' passed for protecting the privileges of the Bank of England :(w) "That it shall not be lawful for any body, politic or corporate, whatsoever, or for any other persons whatsoever, united or to be united in covenant or partnership, exceeding the number of six persons in England, to borrow, owe or take up any sum or suras of money on their bills or notes payable at demand, or at any less time than six months from the borrowing thereof, during the ^continuance of the privilege of banking granted to the Governor and ■- -• Company of the Bank- of England, "(o) It has been held that these restrictions do not affect a commercial firm consisting of more than six persons. (p) But in consequence of the panic in the latter part of the year 1825, the Bank of England consented to forego a portion of their (ft) Mayor of Stafford v. Till, 4 Bing. 75 (13 E. C. L. B.) ; 12 Moore, 260 (22 E. C. L. E.),s. c. (I) Church T. Imperial Gas Company, 6 Ad, & B. 861 (33 B. C. L. E.) ; Mayor of Ludlow V. Charlton, 6 M. & W. 815 j Paine v. Guardiana of the Strand Union, 15 L. J., M. Ca. 89 ; 8 Q. B. 326 (55 E. C. L. R.), s. c. ; Lamprell v. Billericay Union, 3 Exch. 283. (m) Murray v. East India Company, 5 B. & Al. 204 (7 E. C. L. R.). {if) 39 & 40 Geo. 3, l. 28, s. 15. (0) For the history and exclusive privileg-es of the Bank of England more at large, see the case of the Bank of England v. Anderson, ^ Bing. N. 0. 589 (32 E. C. L. R.) ; i Scott, 50 (36 E. C. L. E.) ; Keen, 328. (p) Wigan v. Fowler, 1 Stark. 459 (2 E. C. L R.). (1) A cashier has primS, fade authority to indorse', on behalf of the bank, securi- ties held by it, and any restriction on this authority must be proved by the party contesting it. Wild v. Passamaquoddy Bank, 3 Mason, 505 ; Fleckner v. United States Bank, 8 Wheat. 357 ; Everett v. U. States, 6 Porter, 1S6; Elliott v. Abbott, 12 N. Hamp. 549 f Crocket v. Young, 1 Smedes and Marsh. 241 ; Harper V. Calhoun, 7 How. Miss. 203 ; Farrar v. Oilman, 19 Maine, 440 ; Farmers and Mechanics Bank V. Troy City Bank, 1 Dougl. 457 ; Badger v. Bank of Cumberland, 26 Maine, 428. A corporation is liable on a draft drawn or accepted by an authorized ageat, though the name of the corporation is not used, if it be drawn or accepted under a name adopted by the corporation. Conro t. Port Henry Iron Co., 12 Barbour, 27. 160 OP THE CAPACITY OF CONTR ACTINfl PARTIES exclusive privilege ; and the 7 Geo. 4, c. 46, enacts, accordingly, that corporations or copartnerships of more than six in number, carrying on business more than sixty-five miles from London, may issue bills or notes payable on demand, and that such corporationfl or copartnerships may issue notes or bills amounting to 501. payable in London or elsewhere at any period after date or sight, (g') The third section declares, that any such corporation or partner- ship may discount bills not drawn by or upon them. Each offelice against the provisions of the act subjects to a penalty of 501. The act by which the Bank Charter was renewed in 1833, the 3 & 4 Will. 4, c. 98, continued the privileges bestowed on the Bank of England by the 39 & 40 Geo. 3, and subsequent acts, subject to termination on twelve months' notice, to be given after the 1st August, 1844. The privileges of the Bank are now further coa- tinued by the 7 & 8 Vict. c. 32, subject to termination on twelve months' notice to be given after the 1st August, 1855. The 3 & 4 Will. 4, c. 98, provides that no bank of more thaU six persons shall issue in London, or within sixty-five miles thereof, bills or notes payable on demand, saving the rights of country bankers to make thejr notes payable in London. (»•) The 3 & 4 Will. 4, c. 98, further declares that other corporations and companies of more than six persons may carry on the busi- ness of banking in London, provided they do not issue bills or notes at less than six months' date.(a) r*fiQ-| *That the notes of the branch banks of England shall be ■ made payable where issued. (<) The Bank of England can issue bank notes unstamped, (««) and has' the exclusive privilege of doing so within the city of London sSai three miles thereof, (t)) (y) The limitation of 50Z. appears to be abolished by the 3 & 4 Will. 4, c. 83, s. 2, and V & 8 Vict c. 32, s. 26. As to the mode of recovering penalties, see 8 & 9 Vict. c. 76, s. 5. (r) 3 & 4 Will. 4, c. 98, s. 2. (s) Sect. 3. Therefore a banking partnership of more than six persons in London, or within sixty-five miles thereof could not accept a bill at less than six months drawn upon them by a customer. Bank of England v. Anderson, 3 Bing. N. 0. 589 (32 B. C. L. R.) I 4 Scott, 50 (36 B. C. L. R.) ; Keen, 328, s. c. But the restric- tion is relaxed by the T & 8 Vict. c. 32, s. 26. («) 3,& 4 Will. 4, c. 98, s. 4. (k), ■? & 8 Vict. c. 32, s. 7. (f ) 9 Geo. 4, 0. 23, s. 1. TO A BILL OB, NOTE. 161 No person wlio was not a banker issuing his own notes on the 6th of May, 1844, can now issue bank notes. (a;) Bank notes under 51. payable to bearer on demand are prohibited in England.(«/) Banks of six, or fewer than six persons, existing as banks of issue before the 6th May, 1844, may issue bills and notes, and promissory notes payable to bearer on demand, on unstamped paper, (except within the city of London and three miles thereof,) within the provisions of 9 Geo. 4, c. 23, s. 1. Banking corporations and companies of more than six persons cannot issue in London or within sixty-five miles thereof any bill or note payable on demand.(a) Every member of a banking partnership is liable to the payment of outstanding notes, though he were not a partner when they were issued, (a) But a more lengthened and minute inquiry into the provisions of these and other statutes regulating the rights and duties of the Bank of England and other Banks of issue would be a digression from the main subject of this work. Such a discussion would find a more appropriate place in a treatise on the law of Banks of issue, deposit and exchange. The law as to the liability of joint-stock companies drawing, ac- cepting or indorsing bills, involves some nice distinctions, and is not yet very clearly settled. *As to joint-stock companies at the common law, it is con- r*/>Q-i ceived to be a general rule, that if the directors accept simply in their own names, with or without authority to do so, they, and they only, are liable at law on the bills. (S) And that they are liable at law not only to holders who are strangers, but to [x) 7 & 8 Vict. c. 32, ss. 10, 11, 12. This privilege extends to a surTiving partner in a banking firm. Smith v. Everett, 29 L. J., Cha. 236. (y) 7 Geo. 4, c. 6. (z) 39 & 40 Geo. 3, c. 28, a. 15 : 3 & Will. 4, u. 98, s. 3 ; and see 3 & 4 Will. 4, c. 83, s. 2. See further, Bank of England t. Anderson, supra, and Booth t. Bank of England, 6 Bing. N. C. 415 (37 E. C. L. R.) ; 1 Scott, N. E. 701, s. c. See also the provisions of 7 Geo. 4, c. 46 j 7 & 8 Vict.c. 32, s. 26 ; 8 & 9 Vict. u. 76 ; 20 & 21 Vict. c. 49. V (a) 7 Geo. 4, c. 46, s. 1. _ (i) Page 30. 11 162 OF THE CAPACITY OF CONTRACTING PARTIES holders who may be also holders of letters of allotment, or holders of serip.(c) If, however, having authority to bind the company by bills, the directors regularly accept, , in the name of the company, a bill drawn on the company, every member of the company is liable as a joint acceptor to any holder, not being also a member of the company,((?) An authority to make contracts and bargains, and to transact all matters requisite for the affairs of the company, will not in generalxauthorize the directors to draw bills. (e) But a limited authority to draw bills will receive a fair and reasonable construc- tion.(/) Directors signing a joint and several note, though for themselves and the other shareholders, are personally responsibIe.(^) But not necessarily so if the note be joint only.{7i) And it has been held, that if the secretary's name is countersigned as secretary, he also is liable, (i) If a bill be drawn on several trustees or directors who have power to bind each other, an acceptance by one in his own name is the acceptance of all.(y) Notice of a fact to one member of a joint-stock company is not notice to all, (A) as in the case of a private partnership. |-^-/,> A bill drawn on the agent of a joint-stock company, he *being a member of it, and accepted by him per procura- tion for the company, binds him personally as a member,(Z) (c) Pox V. Frith, 10 M. & W. 131. {d) See Teague v. Hubbard, 8 B. & C. 345 (15 E. 0. L. E.); 2 M. & R. 369 (17 E. C. L. R.), s. 0. ; Higgins v. Senior, 8 M. & W. 834 ; Fox v. Frith, 10 M. & W. 131 ; Steele v. Harmer, 15 L. J., Exch. 217 ; 14 M. & W. 831 ; 19 L. J., Exch. 34; 4 Exch. 1, s. 0. ; Maclae v. Sutherland, 3 B. & B. 1 (77 E. 0. L. R.). (e) See Harmer t Steele, 19 L. J., Exch. 34; 4 Exch. 1, s. c. ; Allen v. Sea Life Assurance Company, 9 C. B. 574 (67 E. C. L. R.) ; Halford T. Cameron Coal Com- pany, 20 L. J., Q. B. 160 ; 16 Q. B. 442 (71 E. C. L. R.), s. 0. ; Edwards v. Same, 6 Exch. 269. (/) Thompson v. Wesleyan Newspaper Association, 8 C. B. 849 (65 B. C. L. R.). (g) Healey t. Story, 18 L. J., Exch. 8 ; 3 Exch. 3, s. o. See also Penkivil v. Con- nell, 19 L. J., Exch. 305 ; 5 Exch. 381, s. 0. (A) Lindus v. Melrose, 27 L. J., Exch. 326; 2 H. & N. 293; s. o., in error, 27 L. J., Exch. 328 ; 3 H. & N. 177. This was a decision on the stat. 19 & 20 Vict. c. 47, s. 43. (j) Bottomley v. Fisher, 31 L. J., Exch. 417 ; 1 H. & Colt. 211. (j) Jenkins v. Morris, 16 M. & W. 877. (A) Powles r. Page, 3 C. B. 31 (54 E. C. L. R.) ; Steward v. Dunn, 12 M. & W. 664. {I) Nichols V. Diamond, 9 Exch. 154. TO A BILL OR NOTE. 163 The Stat. 7 & 8 Vict. c. 110, s. 45, enacts, that where the direc- tors are authorized by deed of settlement or bye-law to issue or accept bills or notes, they shall be made or accepted by two direc- tors, and expressed to be made or accepted on behalf of the com- pany, and countersigned by the secretary. That they may be indorsed in the name of the company by any officer authorized by deed or bye-law. That on instruments properly made the company may be sued, but the signing officers are not liable. The liability of a company formed under this Act cannot be limited by the deed of settlement,(m) and a proviso in a bill of exchange limiting the liability is repugnant and void.(w) On this statute it has been held that an acceptance in this form, " A. and B., directors appointed by resolution to accept this bill," is an acceptance within the statute.(o) The registered deed is notice of its contents to all who deal with the company.(p) The statutes 19 & 20 Vict. c. 47, s. 43 (amended by the 20 & 21 Vict. c. 14, 20 & 21 Vict. c. 80, 21 & 22 Vict. c. 60, and 25 & 26 Vict. c. 89, s. 47,) enact, that bills and notes made, accepted or indorsed in the name of the company, by any person acting under the authority of the company, express or implied, shall bind the company. (§') But if any person on behalf of a limited company registered under the act signs or indorses a bill, check, or note on which the name of the company is not duly mentioned,(?') *he is liable r^^ir-i-i to a penalty of 50/., and is moreover made personally respon- sible to the holder.(8) (m) Gordon v. Sea Fire Society, 1 H. & N. 599 ; Re Sea Fire and Life Society, 3 De G., M. & G. 459. See also Peddell v. Gwynn, 1 H. & N. 590, and Lindley on Partnership, vol. i. p. 201. (n) Re State Fire Insurance Company, 32 L. J., Cha. 300. (o) Halford v. Cameron Coal Company, 20 L. J., Q. B. 160; 16 Q. B. 442 (71 E. C. L. R.), s. 0. ; Edwards v. Cameron Coal Company, 6 Bxch. 269. (p) Ridley v. Plymouth Company, 2 Exch. TU ; Balfour t. Ernest, 28 L. J., C. P. 170 ; 5 0. B., N. S. 601 (94 E. C. L. R.), s. o. ; Royal British Bank v. Turquand, 5 E. & B. 248 (85 E. C, L. R.) ; 6 E. & B.- 327 (88 B. C. L. R.). (y) Lindas v. Melrose, supra. As to what is a making In the name of the com- pany, see further, Aggs v. Nicholson, 1 H. & N. 165. (r) And described as limited. See s. 5. («) Sect. 31 ; Penrose v. Martry, 28 L. J., Q. B. 28 ; B., B. & B. 499 (96 E. C. L, 164 OP THE CAPACITY OF CONTRACTING PAKTIES, ETC. By the 25 & 26 Vict. c. 89, s. 95, official liquidators appointed under that Act have power do draw, accept, make or indorse bills and notes in the name and on behalf of the- company. If persons who fill official situations, as churchwardenSj overseers, surveyors, commissioners, managers of joint-stock banks, agents and secretaries to companies, and the like, give bills or notes on which they describe themselves in their official capacity, they are never- theless personally liable. Thus, drafts on a banker signed by commissioners under an inclosure act " as commissioners" bind the commissioners personalIy.(<) So does a promissory note given by A. and B. as churchwardens and overseers, (m) So it is conceived that the legal interest in a bill or note given to an officer by his name of office, vests in the person who happens to fill the office at the time. Thus, a note given to the manager of a joint-stock banking company vests at law in the person who fills that office when the note is given. (i;) And where a note was made payable to the trustees acting under A.'s will, parol evidence was held admissible to show who they were and what the trusts were.(a;) But a bill or note payable at a certain time after date to the secre- tary or other officer for the time heing of a company is void, the payee being uncertain at the time of making. («/) r*721 *The manager, as well as any other hond fide holder, may of course sue in his own name oij any bills indorsed in blank belonging to a banking company. (g) B.), s. c. Bnt it sjeems be is not liable as aa acceptor of a bill drawn on the company, Eastwood T. Bain, 28 L. J. Ex., 74; 5 H. & N.YSS, s. c. Quer^, whether he be liable for a false representation. (Ibid.) {t) Eaton T. Bell, 5 B. & Aid. 34 (7 B. C. L. B.) ; Nichols t. Diamond, 9 Exch. 154 1 Bottomley T. Fisher, 1 H. & C. 211. (k) Rew T. Petit, 1 Ad. & E. 196 (28 E. 0. L. R.) ; 3 Ner. & M. 456 (28 E. 0. L. R.), s. c, nom. Crew v. Petit ; Price t. Taylor, 29 L. J., Ex. 331 ; 5 H. & N. 540; and vide ante, p. 37. The personal liability of churchwardens and overseers is not transferred to their successors by the 11 & 12 Vict. c. 91. See Chambers v. Jones, 5 Exch. 229. Official liquidators under 25 & 26 Viet. c. 89, s. 95, may draw*l3ills with the sanction of the Court. (v) Robertson v. Sheward, 1 M. & Gran. 511 (39 B. C. L. R.); 1 Scott, N. R. 419, s.o. (a;) Megginsou v. Harper, 4 Tyrwh. 06 ; 2 Cr. & M. 322, s. c. {y) Storm v. Stirling, 3 E. & B. 832 (77 B. 0. L. B.) ; Yates v. Nash, 29 L. J., C. P. 306; 8 C. B., N. S. 581 (98 E. C. L. B.), s. c. But a promissory note to the trus- tees of a chapel or their treasurer for the time being was held good, for the trustees were held to be the payees and the treasurer merely an agent. Holmes v. Jaques, r Law Rep., Q. B. 376. See the Chapter on Irregular Instruments. (a) Law V. Parnell, 30 L. J. 17 ; 7 C. B , N. S. 282 (97 E. 0. R.), s. o. OF THE FORM OF BILLS OF EXCHANGE, ETC. 165 And where a note was given to the treasurer of a loan society for the time being, under the 5 & 6 Will. 4, c. 28, neither the treasurer when the' note was given, nor his successor in office, could maintain an action on the note, for the additional reason that the acts of Paffliament, establishing loan societies, contemplated pro- ceedings by complaint before a justice of the peace. (a) But now by the 3 & 4 Vict. c. 110, ss. 16 & 17, the treasurer or clerk for the time being may sue on such a note in any county court or court of conscience or request. [*73] *CHAPTER VI. OF THE FORM OF BILLS OF EXCHANGE AND PROMISSORY NOTES. PLACE ON WHAT SUBSTANCE THEY MAT BE WRITTEN IN WHAT LANG0A6E . IN PENCIL OB IN INK . SIGNATURE BT A MARK OF THE SUPEBSGSIPIION OF THE 1 WHERE HADE OP THE DATE . OF THE SUPERSCRIPTION OF THE SUM PAYABLE OF THE TIME WHEN PAYABLE OP USANCE OF THE BEQUEST TO PAY . OF THE NAME OF THE PAYEE OF THE WORDS "ORDER" OB " EEAREB" 80 OF THE SUM PAYABLE . . .80 BILLS AND NOTES UNDER 208. . . 80 BILLS AND NOTES UNDER 51. . . 81 OP THE WORDS "VALUE RECEIVED" . 82 OTHER STATEMENT OF THE CONSIDER- ATION 83 OF THE DRAWEB'S SIGNATURE . . 83 OF THE DIRECTION OF THE DRAWEE . 84 OF THE PLACE WHEBE MADE PAYABLE BY THE DRAWER . . . .84 OP THE DIRECTION TO PLACE TO AC- COUNT 86 OF THE WORDS "as PEE advice" . 86 Bills of exchange and promissory notes are usually, but it is apprehended not necessarily, written on paper. It is conceived that they might be written on parchment, cloth, leather, or any other convenient substitute for paper, not being a metallic sub- stance.(a) (a) Tims v. Williams, 3 Q. B. 413 (43 E. 0. L. E.). The justices must order pay- ment forthwith, for they cannot postpone the time for payment of the note. Parker- V. Boughey, 31 L. J., Mag. Ca. 272. ((z) Seepost, as to Metallic Tokens. 166 OF THE FORM OF BILLS OF EXCHANGE ■ They may be written in any language, and in any form of words. A bill or note, or any other contract, may be written in pencil, as well as in ink. " There is," says Abbott, C. J., " no authority for saying, that when the law requires a contract to be -in writing, that writing must be in ink. There is not any great danger that our decision will induce individuals to adopt the mode of writing by pencil in preference to that in general use. The imperfection of this mode of writing, its liability to obliteration, and the impos- sibility of proving it when so obliterated, will prevent its being generally adopted."(6) Contracts written and signed *in '- -^ pencil are constantly admitted as written contracts at Nisi Prius,(c) and testamentary writings in pencil often in the Ecclesi- astical Courts. (cZ) The signature or indorsement of negotiable instruments may be by a mark.(e) It is proper, though not necessary, to superscribe the name of the place where the bill or note is made. But a check on a banker must, unless stamped as a bill, express the place where drawn, and such place must be within fifteen miles of the banker's place of business.(/) The 9 Geo. 4, c. 65, prohibits the circulation of all negotiable notes or bills under bl, or on which less than 51. shall remain undischarged, payable to bearer on demand, and which were made, or purport to be made, in Scotland, or Ireland, or elsewhere^ out of England, under the penalty of 20^., to be recovered in a sum- mary way.(^) Neither is a date in general essential to the validity of a bill or note ; and if there be no date, it will be considered as dated at the (6) Geary v. Physic, 5 B. & 0. 234 (11 E. C. L. R.) ; 1 Dow. & R. 653 (16 B. 0. L. R.), s. 0. (c) Jcffery v. 'Walton, 1 Stark. 26T (2 E. C. I,. R.). [d) Rhymes v. Olarkson, 1 Phil. 22 ; Green v. Skipworth, 1 Phil. 53 ; Dickenson T. Dickenson, 2 Phil. 1T3. («) George v. Surrey, 1 M. & M. 516 (22 B. 0. L. R.). (/) 55 Geo. 3, c. 184, a. 13 1 9 Geo. 4, c. 49, s. 15. See the Chapter on Clucks and the recent statutes there referred to. {g) This does not extend to drafts on bankers ; see sect 4. AND PROMISSOKY NOTES. 167 time it was made.(A)(l) And if in pleading it be stated to have been drawn on a particular day, but the declaration does not state the date appearing on the bill, that is sufficient on a motion in arrest of judgment or on demurrer.(i) The date expressed in the instrument is, (except when it is ten- dered by assignees of a bankrupt, as evidence of a petitioning creditor's debt,)(y) primd facie evidence of the time when the instrument was made,(A) (A) De la Courtier v. Bellamy, 2 Show. 422 ; Hague v. French, 3 B. & P. ] 73 ; Giles V. Bourn, 6 M. & Sel. T3; 2 Chit. R. 300 (18 E. C. L. B.), a. 0. Parol evi- dence is admissible to show from what time an nadated instrument was intended to operate. Davis v. Jones, 25 L. J., 0. P. 91 ; 17 C. B. 625 (84 B. C. L. E.J, s. c. / (J) Ibid. (/) Wright T. Lainson, 2 M. & W. 739 ; 6 Dowl. 146, s. c. ; see post. \k) Anderson v. Weston, 6 Bing. N. C. 296 (37 B. C. L. R.) ; 8 Scott, 893, s. c; Taylor v. Kinloch, 1 Stark. 175 (2 E. 0. L. R.); Obbard v. Betham, 1 M. & M. 486 (22 B. 0. L. R.) ; Smith v. Battens, 1 M. & Rob. 341 ; but see Cowie v. Harris, 1 M. & M. 141 ; 4 M. & P. 722, s. c. ; Rose v. Rowcroft, 4 Camp. 245. And this rule applies to written documents in general. Sinclair v. Baggaley, 4 M. & W. 312; Davies v. Lowndes, 7 Scott's New Rep. 213 ; Potez v. Glossop, 2 Exch. 195 ; Har- rison V. Clifton, 17 L. J., Exch. 233 ; and the cases cited in the note to Potez v. Glossop. All the Irish Judges, in Butler v. Mountgarret, considered the point as finally settled ; but in the same case, 7 H. L. Cases, 647, Lprd Wensleydale expressed a doubt whether the cases above referred to had been rightly decided. The weight of authority, however, is in favor of the rule as laid down in the text, and it would be difficult to conduct investigations at Nisi Prius, without such a presumption. (1) A date is not essential. Michigan Ins. Co. y. Leavenworth, 30 Vermont, 11. The indorsee, in a suit against the maker, may prove that there was a mistake in the date of the note. Drake v. Rogers, 32 Maine, 524. Where the date of a note bearing interest from date has been omitted, the date of its delivery may be shown, and interest computed from that time. Richardson v. Gllett, 10 Texas, 190. In an action on a promissory note, which bears date on Sunday, it is competent to allege and prove that it was, in fact, executed and delivered on a different day. Aldridge v. Branch Bank, 17 Alabama, 46. A note made on the Sabbath is void when no subsequent ratification is made. Bosler v. McAllister, 13 Indiana, 365. If delivered on any other day, though signed on Sunday, it is good. Bank v. Mayberry, 48 Maine, 198. A note signed and delivered to the payee on Sunday, bat bearing date on another day, is valid in the hands of a bon& fide holder. Ibid. A promissory note, given on Sunday for an antecedent debt, is valid. Kaufman v. Hamm, 30 Missouri, 387. A note made and delivered on Sunday is good in the hands of a bonfi, fide holder. State Bank v. Thompson, 42 New Hampshire, 369. A note is not invalidated by being antedated. Gray v. Wood, 2 Har. & Johns. 328 ; Richter V. Selin, 8 Serg. & Rawle, 425. A note takes effect by delivery, and from the time of delivery ; but a delivery and at the time of the date will be presumed, until the contrary appear. Woodford v. Dorwia, 3 Vermont, 82 ; Lansing v. Gaine, 2 Johns. 300. Where a bill was drawn in blank as to date and name of drawer, bat at four 168 OF THE FORM OF BILLS OF EXCHANGE P^w--| ^Formerly promissory notes, payable to bearer on demand, must not have had printed dates under the penalty of 60Z.(Z) , But the statute prohibiting them is now repea]ed.(m) In general, a bill or note may be post dated. (w) But under the old Acts if this was done so as to postpone the time of paymentbe- yond the period of two months after the making, or so as to make it in effect payable at a longer interval than sixty days after sight, a,nd thus evade the higher scale of duty for bills at long dates, a penalty of lOOZ. was incurred,(o) and the instrument was inadmis- sible in evidence.(^) But an unstamped bill or note issued by bankers under the pro- visions of 9 Geo. 4, c. 23, must not be post dated, under the penalty of lOOZ.(g) All negotiable bills, notes, or drafts, for 20s. or any sum between 20«. and bl, must bear date before or at the time of issuing, under the penalty of 20Z.(r) The usual allegation that a bill or note was made on a particular day is not matter of description, and the day need not be proved as laid.(s) It would be otherwise if the declaration went on to describe the instrument as bearing date on a particular day. Misdescription of the date of a bill in an agreement is immaterial if the bill were in existence and present. For ^'presentia corporis toUit errorem nominis." (t) The sum for which a bill is made is usually superscribed in figures ; in a note or chec]c, the figures are commonly subscribpS. ' The superscription or subscription of the sum payable is not (il) 55 Geo. 3, »;. 184, s. 18. (m) 23 & 24 Tict. 0. Ill, s. 19. (n) Pasmore v. North, 13 Bast, 517. See Austin t. Bunyard, 27 L. J. 217. (o) 55 Geo. 3, 0. r84, s. 12. (p) Field T. Wood, 6 Dowl. P. 0. 23 ; 7 Ad. & El. 114 (34 E. 0. L. R.) ; 2 N. & P. 117, s. 0.; Serle v. Norton, 9 M. & W. 309. (g) Sect. 12. [r) 17 Geo. 3, c. 30, reyived by 7 Geo. 4, c. 6 ; repealed as to checks, 17 & 18 Vict, c. 83, s. 9. (s) Coxon V. Lyon, 2 Camp. 307, n. ; Smith v. Lord, 14 L. J., Q. B. 112 ; 2 D. & L. 759, B. 0. (t) Way V. Hearne, 32 L. J. 34. months after date, and the person to whom it was delivered to he negotiated filled up the date with a day anterior to the delivery, and left it with a creditor of his own who knew that it was antedated, as security for an antecedent debt, it was held to be void in his hands. Goodman v. Simon, 19 Missouri, 106. AND PROMISSORY NOTES. ' 169 necessary, if the sum be stated in the body of the note, but it will aid an omission in the body : as, where the word *fifty was r^rf.-, written in the body of the note, without the word pounds. (w)(l) The time of payment is regularly and usually stated in the be- ginning of the note or bill ; but, if no time be expressed, the instru- ment will be payable on demand.(v)(2) Negotiable bills or notes under bl. must formerly have been made payable within the space of twenty-one days from the date.(a;) But now there is no limitation as to the time when the bill or note is to be made payable. The bill or note may be made payable on de- mand, or at sight, or at any certain period after date, or after sight, or at usance. " If a bill of exchange be made payable at (k) Elliott's case, 2 Bast, P. C. 951 ; 1 Leach, 175, s. o. {y) Whitlock v. Underwood, 3 Dowl. & R. 356 (16 E. C. Ti. R.) ; 2 B. & 0. 157 (9 E. C. L. R.), a. 0. ; Down t. Hailing, 4 B. & 0. 333 (10 B. C. L. R.) ; 6 Dovrl. & R. 455 (16 B. 0. L. R.) ; 2 C. & P. 11 ( 12 B. 0. L. R.), s. 0. ; Bayley, 5th ed. 109. Bat on a motion to set aside an annuity, the coart will not assume that even a Bank of England note, or a draft on a banlier, are payable on demand. See the cases col- lected in the recent case of Abbott v. Douglas, 1 0. B. 491 (50 E. C. L. R.). (tj) 17 Geo. 3, c. 30, now repealed. (1) The check mark or figures of a note from no part of its legal obligation, and can be used to control the body of the note only when the meaning is doubtful. Riley v. Dickens, 19 Illinois, 29. Mears t. Graham, 8 Blackford, 144 ; Smith v. Smith, 1 Rhode Isknd, 398. - A note for thee hundred dollars, and in figures $300, is a good note for that amount if the maker so intended when he signed it, which is a question for the jury. Bunham v. Allen, 1 Gray, 496. (2) Hplmes v. West, 17 California, 623; Salinas T. Wright, 11 Texas, 572. A ' note specifying no time of payment but providing for interest from date to be paid annually is in legal efi'ect payable immediately. Jones t. Brown, 11 Ohio (N. S.) 601. A note promising to pay a sum of money " on demand with interest within six months," is payable on demand. JillsonT. Hill, 4Gray, 316. A note promising to pay " on demand, with interest annually payable four months from date" — is a promise to pay on demand, and annual interest after four months from date. Shaw T. Shaw, 43 New Hampshire, 170. A note given to a mutual insurance company payable at such times and in such portions as the directors may require is in legal efifect, payable on demand, that is at its date from which time the statute of limita- tions begins to ran. Colgate t. Buckingham, 39 Barbour, 177. A note payable " six — after date" is not void for uncertainty. But the intention of the parties if legally ascer- tainable should control in the construction of it. Nichols v. Frothingi;am, 45 Maine, 220. The ambiguity being patent is not capable of explanation by parol testimony, but evidence of the usual credit in such cases was let in. Ibid. See Conner v. Routh, 7 Howard (Miss.), 176. A note payable " four months after" is payable four months after date. Pearson v. Stoddard, 9 Gray, 199. 170 OF THE FORM OF BILLS OF EXCHANGE never so distant a day, if it be a day that must come, it is no ob- jection to the bill."(y) The expression after sight, on a bill of -exchange, means after ac- ceptance, or protest for non-acceptance, and not after a mere private -exhibition to the drawee, for the sight must appear in a legal way.(2)(l) But if a note is made at or after sight, the expression merely imports that payment is not to be demanded till it has been again exhibited to the maker ;(a) for a note being incapable of ac- ceptance, the word " sight" must, on a note, bear a different mean- ing from the same word on a bill. Foreign bills are commonly drawn at one, two, or more usances, or, as it is sometimes expressed, at single, double, treble, or half usance. Usance signifies the usage of the countries between which bills are drawn with respect to the time of payment. If a foreign bill be drawn, payable at sight, or at a certain period after sight, the acceptor will be liable to pay according to the course of ex- change at the time of acceptance, unless the drawer express that it P^^YT is payable *according to the course of exchange at the time it was drawn, en espdces de ce jour.{b) Where half usance stands for 'half a month, it is fifteen days. And, in the case of all bills payable in England, month means calendar month. The bill or note must be certainly payable at some time or other.(c) The order to pay need be in no particular form ; any expression amounting to an order,(d) or direction, is /SufiScient.(e) The word {y) Willes, C. J., in Colehan v. Oooke, Willes, 396. (2) Marias, 19, cited by Lord Kenyoh In Campbell v. French, 6 T. R. 212. So in America it has been held that after sight means after acceptance, and not after mere presentment. Bjles on Bills, 4th American edition. (ffl) Holmes V. Eerrison, 2 Taunt. 323 ; Sturdy v. Henderson, 4 B. & Aid. 592 (6 E.^ 0. L. R.) ; Sutton v. Toomer, 7 B. & 0. 416 (14 E. 0. L. R.) ; 1 M. & Ry. 125 (11 B. C. L. R.), s. 0. 1 Dixon T. Nuttall, 1 C, M. & R. 307 ; 6 C. & P. 320 (25 B. C. L. R.), B. 0. . (i) Poth. 174. (c) Vide post. Irregular Inatrumentt. (d) Hamilton v. Spottiswood, 4 Bxch. 200. (e) Beawes, 3 ; Marias, 11. In France, il voits plaira payer, is the common lan- guage of a bill. Morris v. Lee, 2 Ld. Raym. 1397 ; 1 Stra. 629, s. 0. Qumre, whether a mere written request, without any words of demand, amount to a bill. Lord Ken- (1) A bill payable so many days after sight, means legal sight, and the bill begins to run from the presentment and acceptance, and not from the time of mere present- ment. Mitchell T. De Grand, 1 Masou, 176. AND PROMISSORY NOTES. 171 " •pay" itself is not indispensable. Any synonymous or equivalent expression will suflSce, as " Credit in Oash."{f) The payee should be particularly described, so that he cannot be confounded with another person of the same name, and must be a person who is capable of being ascertained at the time the instru- ment is made.(^) It is sufficient that the payee be so designated, though he be not named.(A) But if the bill get into the hands of a wrong payee, unless it be payable to bearer, he can neither ac- quire nor convey a title. One Christian drew a bill on the defend- ant, in London, payable to Henry Davis. The bill got in the hands of another Henry Davis than the one in whose favor it was drawn, was accepted by the defendant, and by the wrong Henry Davis was indorsed to the plaintifiF. Held, that the indorsement of his own name by Henry Davis was, under these circumstances, a forgery, and (dissentiente Lord Kenyon) could convey no title to the plain- tifif.(i)(l) If the name be spelt wrong, parol evidence is admissible to show *who was intended. (A;) If there be father and son r;)ciTD-i of the same name, it would be intended payable to the father till the contrary appear.(Z) But if the son be found in possession . of the note, and he indorse, that is evidence that he, and not the father, is payee.(m) A note payable to A., or to B. and C, or his yon held this instrument to be a bill : — " Mr. Nelson will much oblige Mr. Webb, by paying to J. Ru£F, or order, twenty guineas on his account." Ruff v. Webb, 1 Esp. 129. But Lord Tenterdeu held the following instrument not to be a bill : — " Mr. Little, please to let the bearer have seven pounds, and place it to my account, and you will oblige your humble serrant, R. Slaokpord." Little v. Slackford, 1 M. & M. 171. "The paper," says hjs Lordship, "does not purport to be a demand made by a party having a right to call on the other to pay. The fair meaning is, 'you will oblige me by doing it.' " But see Russell t. Powell 14 M. & W. 418. (/) Ellison V. CoUingridge, 9 C. B. 570 (67 E. C. L. R). Iff) Yates V. N^sh, 29 L. J., 0. P. 306; 8 C. B., N. S. 581 (98 E. C. L. R.). (A) Storm v. Stirling, 3 E. & B, 832 (77 E. 0. L. R.) ; Oowie v. StirUng, 6 B. & B. 333 (98 E. C. L. R.). (i) Mead v. Young, 4 T. R. 28. (A) Willis v. Barrett, 2 Stark. 29 (3 E. 0. L. R.). (1) Sweeting v. Fowler, 1 Stark. 106 (2 E. C. L. R.) ; Wilson v. Stubs, Hobart, 330; see Bro. Ab. Addition, 18, 34, 43, 9 to 6 ; 13 Dyer, 5. (m) Stebbing v. Spicer, 19 L. J., C. P. 24 ; 8 C. B. 827 (65 E. C. L. R ), s. 0. (1) Every negotiable note must be negotiated by the person (or his representatives) to whom the note was made payable and not by a person of the same name. Poster ' v. Shattuck, 2 New Hamp. 446. It is competent for the holder of a promissory note or other instrument to declare upon It as a promise made to himself in a name differ- ent from his own, and to prove that he was the person intended. Patterson v. Graves, 5 Blackford, 593 ; Jester v. Hopper, 8 English, 43. 172 OF THE FORM OF BILLS OF EXCHANGE or their order, is not a promissory note, within the statute. (w) A note in this form — " 15?. 58. balance due to A. C, I am still in- debted, and do promise to pay."(o) Or in this — " Keceived of A. B. lOOZ., which I promise to pay on demand, with lawful interest," sufficiently designates the payee. (p) A note payable "to the trustees acting under A.'s will" is a good note, and parol evidence is admissible, to show who the trustees are, and what are the trusts. (g')(l) A note was made payable to the manager of the National Provincial Bank of England. To an action by the payee in his own name, the defendant pleaded that he did not make the note^ Held, that, under this plea, the plaintiff was entitled to re- cover.(r) " On demand I promise to pay J. W., T. S* and D. M,, or to their order, or the major part of them, lOOL," is a promissory note upon which the three persons mentioned can jointly maintain an action, (s) ' If the bill be not made payable, either to any payee in particu- lar, or to the drawer's order, or to bearer in general, it would seem, according to the opinion of the majority of the Judges,(f) to be payable to bearer ; but, according to the opinion of Eyre, G. B., in the same case, it is mere waste paper. (m) If drawn payable to a fictitious payee, and the drawer indorse the fictitious payee's name, the holder cannot, either as indorsee or bearer, recover against the acceptor ;(i) but if. the holder's money has got into the acceptor's hands, the holder may recover it as money had and received. If (n) Blanckenhagen v. Blnndell, 2 B. & Aid. ill. (0) Chadwick t. Allen, 1 Stra. 706. Ip) Green v. Davies, 4 B. & C. 235 (10 E.G. L. R.) ; 6 D. & B. 306 (16 B. C. h. E.), s. 0. (?) Megginson t. Harper, Tyr. 96; 2 0. & M. 322, s. o. (r) Robertson V. Sheward, 1 M. & G. 511 (39 E. 0. L. R.) ; 1 Scott, N. R. 41 9, B. o. (a) Watson v. Evans, 32 L. J., Exoh. 137 ; 1 Hurl. & Colt. 662, a. a. (i) Minet v. Gibson, 1 H. Bl. 608. (u) In Rex T. Randall, Rass. C. G. 185, a bill payable to , or order, was held not to be a bill of exchange ; because there was no payee ; and see Bex t. Richards, 1 R. & R. G. G. 193. (x) Bennett y. Farnell, 1 Gamp. 130. (1) The name of the payee need not be inserted in the bill, if he be so certainly described as to be easily ascertained. Adams t. King, 16 Illinois, 169. A note payable to the administrator of A.'s estate is a good promissory note. Moody v. Threlkeld, 13 Georgia, 55. To hold one liable as the drawer of a bill, his name must be either inserted in it or subscribed to it. May t. Miller, 27 Alabama, 515. When the drawer's name is not mentioned, but it is accepted and indorsed, assumpsit will not lie. Tevis v. Young, 1 Metcalf (Ky.), 197. ' AND PROMISSORY NOTES. 173 the acceptor, at the time of acceptance, knew the payee to be a fictitious person, he shall not take advantage of his own *fraud ; r*7Q-i but a bond fide holder may recover against him on the bill, and declare on it as payable to bearer, or may recover on the money counts. («/) So the holder may recover against an acceptor for the honor of the drawer where the payee is a fictitious person and treat the bill as payable to bearer.(a)(l) (y) Minet v. Gibson, 3 T. R. 481 ; judgment affirmed in Parliament, 1 H. Bl. 569; and see Tere v. Liewis, 3 T. R. 182 ; Collis v. Emett, 1 fl. Bl. 313 j Tatlock v. Harris 3 T. R. 174 To Bennett v. Farnell, 1 Camp. 130, the learned reporter appends the following note : — " Almost all the modern cases upon this question arose ont of the bankruptcy of Livesay & Co., and Gibson k Co., who negotiated bills, with fictitious names upon them, to the amount of nearly a million Uerling a year. The first case was Tatlock v. Harris, 3 T. R. 174, in which the Court of K. B. held, that the bonS, fide holder for a valuable consideration of a bill drawn payable to a fictitious per- son, and indorsed in that name by the drawer, might recover the amount of it in an action against the acceptor, for money paid or money had and received, upon the idea that there was an appropriation of so much money to be paid to the person who should become the holder of the bill. In Tere v. Lewis, 3 T. R. 182, decided the same day, the Court held, there was no occasion to prove that the defendant had received any value for the bill, as the mere circumstance of his acceptance was sufficient evidence of this ; and three of the Judges thought the plaintiff might recover on a count which stated that the bill was drawn payable to bearer. Minet V. Gibson, 3 T. R. 481, put this point directly in issue, and the unanimous opinion' of the Court was, that where the circumstance of the payee being a fictitious person is known to the acceptor, the bill is in effect payable to bearer. Soon after the Court of C. P. laid down the same doctrine in Collis v. Bmett, 1 H. Bl. 313. This decision was acquiesced in ; but Minet v. Gibson was carried up to the House of Lords, 1 H. Bl. 569. The opinion of the Judges being then taken. Eyre, C. B. (p. 618), and Heath, J. (p. 619), were for reversing the judgment of the Court below, and Lord Thurlow, C, coincided with them (p. 625), but the other Judges thinking otherwise, judgment was affirmed. Pari. Cas. 8vo. ii. 48. The last case upon the subject reported is Gibson v. Hunter, 2 H. Bl. 187, 288, which came before the House of Peers upon a demurrer to evidence, and in which it was held, that in an action on a bill of this sort against the acceptor to show that he was aware of the payee being fictitious, evidence is admissible of the circumstances under which he had accepted other bills payable to fictitious persons. Vide Tuft's case. Leach, Cro. Law, 159. Phillipps V. Inthun, 18 C. B., N. S. 694 (114 B. 0. L. R.). (z) Phillipps V. Inthun, 18 C. B., N. S. 694 (114 B. C. L. R.); and see Phillips v. Inthun, E. T. 1866, C. P. (1) A note payable to a company, having no existence legal or de facto is a note to a fictitious payee, and any bond, fide holder may sue on it. Farnsworth v. Drake, 11 Indiana, 101. When a note is made payable to a firm and no such firm exists, the person to whom it is given may indorse the name of the firm. Blodgett v. Jack- son, 40 New Hampshire, 21. To entitle the holder of a note, payable to a fictitious payee to recover, it must appear affirmatively that the holder was ignorant thereof, 174 OP THE FORM OF BILLS OF EXCHANGE If a blank be left for the payeie's name, a bond fide holder may fill it up with his own name, and recover against the drawer.(a) iBut, in order thus to charge the acceptor, the holder must show that he had authority from the drawer to insert his own name as payee. (J) • - *If the name of the payee do not purport to be the name '- -I of any person, as where a note was made payable to Ship Fortune or bearer, it is a note payable to bearer 8imply.(c) Unless a bill or note be payable to order or to hearer, it is not negotiable, though still a valid security as between the original parties ;{d)il) but, if it be, notwithstanding, assigned by the payee, he is chargeable at the suit of an indorsee.(e) A bill or note may be made payable to A. B. or order, or to A. B. or bearer,(/) or to the drawer's own order,(^) or to bearer ' generally. If made payable to order, it is assignable by indorsement ; if made payable to bearer, it is assignable by mere delivery. The sum for which a bill is made payable is usually written in the body of the bill in words at length, the better to prevent altera- tion; and, if there be any difference between the sum in the body (0) Crutchley v. Clarence, 2 M. & Sel. 90 ; Attwood v. Griffin, E. k. M. 426 (21 E. 0. L. R.) ; 2 C. & P. 368 (12 B. C. L. R.), s. c. (J) Crutcbley v. Mann, 5 Taunt. 529 (1 B. C. L. R.) : 1 Marsh. 29 (4 E. C. L. R.), s. 0. And see Awde v. Dixon, 6 Exch. 869. (c) Grant v. Vaughan, 3 Burr. 1516. {d) Smith V. Kendall, 6 T. R. 123; 1 Esp. 231, s. c; Rex v. Box, 6 Taunt. 325 (1 B. C. L. R.) ; Russ. & Ry. 300, s. o. See post, Chapter on Transfer. (e) Hill V. Lewis, 1 Salk. 133. See further on this subject the Chapter on JVamfei'. (/) As to bills payable to bearer on demand, see the last Chapter. [g) Drawn payable to the drawers order, it is payable to himself. Smith v. M'Clure, 6 East, 476 ; 2 Smith, 443, B. c. So also held in America. Byles on Bills, 4th American edition. at the time he received the note. Maniort v. Roberts, 4 E. D. Smith, 83. An in- ■ strument for the payment of money not payable to any particular person or to bearer, is not negotiable ; and a memorandum made by a payee on the back of a note in these words, " Mr. A., pay on within $750," did not authorize a recovery on the money counts by the holder against the payee. Douglass v. Wllkeson, 6 Wendell, 637. (1) Fernon v. Farmer, 1 Harrington, 32; Hackney v. Jones, 3 Humphreys, 612; Reed v. Murphy, 1 Kelly, 236 ; Yingling v. Kohlhass, 18 Maryland, 148. A bill or note made payable " to the order" of the plaintiff need not be indorsed by him before suit brought. It is the same as if made payable to the plaintiff or order. Huling v. Hugg, 1 Watts & Sergeant, 41S.J AND PROMISSORY NOTES. 175 and the sum superscribed, the sum mentioned in the body will be taken to be that for which the bill is made payable ;(A) when the figures express a larger sum than the words, evidence to show that the difference arose from an accidental omission of words, is inad- missible.(«) We have already seen, that an omission in the body will be aided by the superscription. (^) An inaccurate, but intelligible, statement of Jhe sum payable will not vitiate. Thus, an order, or promise to pay so many "pound," instead of "pounds," is a good bill or note.(Z) A bill for "twenty-five, seventeen shillings and three," is a bill for 251. lis. '6d.{m)(l) The word sterling means sterling in that part of the United Kingdom where the bill is payable.(w) All negotiable bills, notes, or drafts for any sum~ under *208., were made void by 48 Geo. 3, c. 88, s. 2; and the third section imposed on the utterers and negotiators of L -• such notes, bills, or drafts, a penalty of 51. to 20?., at the discre- tion of a magistrate, to be recovered in a summary way. Negotiable bills and notes for more than 208. and less than 51., (except checks on bankers), (o) were also formerly void, unless they specified the name and abode of the payee, were attested by a sub- scribing witness, bore date at or before the time of issue, and were made payable within twenty-one days after date, but not to bearer on demand. And such an instrument could not be negotiated after the time limited for its payment. (/?) The 17 Geo. '6, c. 80, ^was repealed by the 3 Geo. 4, c. 70, but was revived by the 7 Geo. 4, c. 6, s. 1. The latter act provided, however, that nothing therein contained should extend to any draft ■ (K) Marina, 138 ; Beawes, 193 ; Saunderson v. Piper, 5 Bing. N. C. 425 (15 E. C. L. R.) ; 1 Scott, 408, s. c. (i) Saunderson t. Piper, 5 Bing. N. 0. 425 (15 B. C. L. B.) ; 7 Scott, 408, s. o. . (ft) Elliot's case, 2 East, P. 0. 951 ; 1 Leach, 175, s. c. [l) Bex T. Port, Bayley, 12, 6th ed. (m) Phipps T. Tanner, 5 C. & P. 488 (24 E. 0. L. E.). («) Taylor T. Booth, 1 C. & P. 286 (12 E. C. L. B.). (o) 7 Geo. 4, u. 6, s. 9, and 17 & 18 Viet. c. 83, s. 9; and see ante, Chapter on QAecJcs. (p) 17 Geo. 3, c. 30; 7 Geo. 4, c. 6; 9 Geo. 4, c. 65, s. 1 ; 17 & 18 Vict. c. 83, o. 9. (1) Booth T. Wallace, 2 Boot, 247. ^ 176 OF THE FORM OF BILLS OF EXCHANGE drawn by a man on his own banker for money held by that banker to the use of the drawer. By s. 3 of the same act, a penalty' of 201. is imposed on issuing any promissory note payable to bearer on demand for less than 61. The 9 Geo. 4, c. 65, s. 1, prohibits the circulation of all negotia- ble notes or bills under 51., or on which less than 51. shall remain undischarged, payable to bearer on demand, and which were made, or purport to be made, in Scotland, or Ireland, or elsewhere, out of England, under the penalty of 20^., to be recovered in a summary way. By s. 4, these provisions do not extend to drafts on bankers. By the 23 & 24 Vict. c. Ill, s. 19, drafts for less than 20«., drawn by a man on his own banker for money held by the banker to or for the use of the drawer, are exempted from the above restrictions. And, lastly, by the 26 & 27 Vict. c. 105, the 17 Geo. 3, c. 30, is repealed in toto, and so much of any other act as prohibits or imposes any penalty with respect- to bills or notes under 51., except promissory notes payable to bearer on demand. As to the latter, therefore, the 48 Geo. 3, c. 88, s. 2, the 7 Geo. 4, c. 6, s. 3, and the 9 Geo. 4, c. 65, s. 1, are still in force. Until the act of 3 & 4 Will. 4, c. 83, s. 2, no bills or notes for any sum under 501. could be issued or made payable to any corpo- ration or copartnership consisting of more than six members, within sixty-five miles of London. (g') P^ *There are some old cases tending to show that the words . value received are an essential part of a bill,(?") but it is now well settled that they are not at all material.(s)(l) It has been indeed laid down(i) that " to entitle the holder of an {q) 1 Geo. 4, c. 46, s. 2. See now the 7 & 8 Vict. o. 32. (r) Oramlington v. Evans, 1 Sbow. 6 ; Vin. Ab. Bills of Exch. U. 2. (s) White v. Ledwich, Bayley, 40, 6th ed. ; 4 Doug. 427 (26 E. C. L. E.), S. 0.; Grant v. Da Costa, 3 M. & S. 351 (30 E. C. L. R.) ; and see Popplewell v. Wilson, 1 Stra. 264, and infra, n'ote. -, (<) Chitty on Bills, 67. (1) The words " value received" are not necessary in a bill of exchange or other negotiable instrument. Benjamin v. Fillman, 2 McLean, 213; Townsend v. Derby, 3 Metcalf, 363 ; Hubble v. Fogartie, 3 Kioh. 413. A paper directed to certain persons requesting them to pay a specified sum to a person named, and charge the same to the account of the drawer, and dated and signed, is a bill of exchange, although it is neither made payable to order or bearer, nor has the words " value received," nor is made payable at a day certain, or at a particular place. Kendall v. Galvin, 15 Maine, 13l. , AND PROMISSORY NOTES, 177 inland bill or note for the payment of 20?. or, upwards, to recover interest or damages against the drawer and indorser, in default of acceptance or payment, it shall contain the words "value re- ceived, "(m) But it is conceived that this opinion is unfounded. It seems to rest on the assumption that a protest is necessary for this purpose, and that the statutes of Will. 3 and Anne, do not authorize or direct a protest, except the bill be expressed to be made for value received. But it_ has been decided that the 8th section of 3 & 4 Anne, c. 9, makes a protest unnecessary for this purpose; (a:) and, even if it were necessary under those statutes, in bills where those wOTds are expressed, it would not be necessary where they are not ; for, upon a careful perusal of both statutes, it will appear that they only apply to bills expressed to be for value received ; and the 6th section of the 3 & 4 Anne distinctly declares, that a protest shall not be necessary, unless the words " value received " appear on the face of the bill; thus, leaving bills where these words are not as at common law : and at common law no inland bill need be pro- tested, in order to charge the drawer with interest and damages. (^) For this purpose, therefore, (if the statutes made any difference,) a bill would be more readily effectual without these words than with them. It has been questioned whether an action of debt will lie on a bill, unless the consideration be expressed.(s) But it is now decided that debt will lie although the consideration be not expressed.(a) The words "value received" are ambiguous, where the bill is drawn payable to a third person ; for they may mean either value received, by the drawer of the payee, or by the acceptor of the drawer. But the first is the more probable interpretation ; for it is more natural " that the party who draws the bill should inform the drawee of a fact which *he does not know, than of one r^oq-i of which he must be well aware. "(J) If, however, the bill is drawn payable to the drawer's own order, the words " value received" must mean received by the acceptor of (k) 9 & 10 Will. 3, c. 17 ; 3 & 4 Anne, c. 9, s. 4. {%) Windle v. Andrews, 2 B. & Al. 696; 2 Stark. 425 (3 E. C. L. R.), s. G. {y) Per Bayley, J., 2 B. & A. 701. (z) Bishop V. Young, 2 B. & P. 78; Priddy v. Henbry, 3 D. & B. 165; 1 B'. & C. 674 (8 E. C. L. R.), a. 0. (a) Hatch t. Trays; Watapn v. Kightly, 11 Ad. & E. 702 (39 B. C. L. R.) ; 3 Per. & Dav. 408, s. 0. (b) Per Lord Ellenborougb, in Grant t. Da Coata, 3 M. & Sel. 351. 12 178 OF THE FORM OF BILLS OF EXCHANGE the drawer ; and on such a bill, if the declaration state that it was for value received by the drawer it will be a variance,(e)' " Value received," in a note, means received by the maker of the payee.(d) Though the nature or particulars of the consideration appear on the bill or note, it is not "necessary to state it in the declaratioUj or it may be stated generally as value received.(«) "The defend- ant," says Maule, J., " may prove that the note was given for a different consideration, or without any consideration at all."(/) But it has been held that the defendant will not be allowed to contradict his written admission on the note, of the nature of the consideration. ' Where a note was given by an administratrix,! and expressed to be " for value received by my late husband," she was not allowed to show that the note was given only as an indemnity, and that the payee had not been damnified.(^) Without the drawer's signature, a bill payable " to my order," though accepted, is of no force, (A) either as a bill of exchange or as a promissory note.(i)\^l) The signature of the drawer or maker of a bill or note is usually subscribed in the right-hand corner ; but it is sufficient if written in any other part. Thus " I, J. S., promise to pay," has been held a sufficient signature of a promissory note.(^') A man who cannot write may sign a bill by his mark.(A;)(2) (c) Highmore v. Primrose, 5 M. & S. 65. (d) Clayton v. Gosling, 5 B. & C. 361 (11 E. 0. L. R.) ; 8 D. & R. 110. (e) Coombs v. Ingram, 4 D. & R. 211 ; Bond v. Stoclcdale, 7 D. & R. 140. If) Abbott V. Hendrich, 1 M. & G. 796 (39 B. C. L. R.) ; 2 Scott, N. R. 183, s. o. "Wliere tiie note on the faee of it purported to be given for " value received in Pen- nance shares pursuant to annexed contract," it was held unnecessary to put in any ■contract. Fox v. Frith, Car. & M. 502 (41. B. C. L. R.). (g) Ridout v. Bristow, 1 C. &. J. 231 ; 1 Tyr. 84, s. o. ; and see Edwards v. JoncB, 2 M. & W. 414 ; 5 Dowl. 585 ; 7 C. & P. 633 (32 B. C. L. R.), a. 0. (A) Stoessiger v. South E. Railway Company, 3 B. & B. 553 (77 E. C. L. R.) ; ^oldsmid v. Hampton, 27 L. J., 0. P. 286 ; 5 C. B., N. S. 94 (89 E. C. L. R.), s. o. (i) M'Call V. Taylor, 34 L. J., C. P. 365. {J) Taylor v. Dobbins, 1 Stra. 399; Saunderson v. Jackson, 2 B. & P. 238. (A) George v. Surry, 1 M. & M. 516. (1) May v. Miller, 27 Alabama, 515; Tevis v. Young, 1 Metcalfe (Ky.), 197. (2) One signed a bill, and opposite his name at the other corner where witnesses •usually sign, but without the word witness above another signed, held not sufficient ^nm& facie that he signed as malter. Steininger v. Hocb, 3 Wright, 263. AND PROMISSORY NOTES. 179 An allegation in pleading that a party made his bill or *note is sufficient, without alleging that he signed it, for malcing implies signing.{l) L J If a deed be first executed, and then written or filled up, the deed is void;(m) but it is otherwise with a bill of exchange. For, if a stamped paper be signed, leaving blanks for the date, sum, time when payable, and name of the drawee, the drawer will be chargeable for any sum afterwards inserted within the amount warranted by the stamp. It is a letter of credit for an indefinite but not unlimited sum. (w)(l) A bill of exchange, being in its original a letter, should be properly addressed to the drawee.(o) But where a bill was made payable " at No. 1, Wilmot Street, opposite the Lamb, Bethnal Green, Loudon," without mentioning the drawee's name, and the defendant accepted it, he was not allowed to make the objec- tion. (p)(2) But a bill cannot be addressed to one man and ac- Q) Elliott T. Oowper, 1 Stra. 609 ; 2 Ld. Kaym. 1376, s. o. ; 8 Mod. 307 ; Ereskine t. Murray, 2 Lord Eaym. 1542 ; 1 Barn. 88, s. 0. (m) Com. Dig. Fait. (A.) 1. (n) Collis T. Emett, I H. Bl. 313 ; Ruaaell v. Langgtaffe, 2 Doug; 496 ; Snaith v. Mingay, 1 M. & S. 87 ; Leslie v. Hastings, 1 M. & R. 119 ; MoUoy v. Delves, 7 Bing. 428 (20 E. 0. L. R.) ; 5 M. & P. 275; 4 0. & P. 492 (19 E. C. L. R.), s. 0. ; Barker V. Sterne, 9 Exch. 684. (0) Peto T. Reynolds, 9 Exch. 410 ; 11 Exch. 418, in error, s. c. {p) Gray v. Milner, 8 Taunt. 739 (4 E. 0. L. R.) ; 3 Moore, 90, s. 0. (1) Between the original parties the consideration of a bill or note can always be inquired into ; and it would practically abolish this rule, and lead to great oppres- sion and injustice if the maker or drawer were held to be estopped by any mere statement on the face of the paper as to the character >of the consideration. Ryberg v.- Snell, 2 Wash. 0. C. Rep. 294; Lawrence v. The Stonington Bank, 6 Conn.-464; Parish v. Stone, 14 Pick. 198 ; Slade v. Halsted, 7 Cowen, 322 ; Pearson t. Pearson, 1 Johns. 26 ; Barnet v. Offerman, 7 Watts, 130. (2) The omission of the name of the drawee at the foot of a bill does not Titiate it. The acceptance supplies the defect, and is an admission by the accep- tor that he is the person intended. Wheeler t. Webster, 1 E. D. Smith, 1. Where a note is signed and delirered with a blank left for the sum payable, though the first holder is restricted as to the amount to be inserted, yet, if the note comes into the hands of another, who, without notice of the restriction, fills the blank with a larger sum, the obligor will be bound by it. Bank of Commonwealth V. Curry, 2 Dana, 142. A person signing his name on a blank paper and delivering it to another authorizes him to fill up the blank with any sum. Bank of Limestone V. Penick, 5 Monroe, 25 ; M' Arthur v. M'Leod, 6 Jones (Law), -475 ; Jones v. Shel- byville Ins. Co., 1 Metcalf, 58. If a person signs a note with a blank date for 180 OF THE FOKM OF BILLS OF EXCHANGE oepted by another.(g) A bill directed to A., or in his absence to B.. being accepted by A., may be declared on without taking notice of B.{r) If the word at precede the drawee's name, whether in- serted ignorantly or fraudulently, the instrument is still a bill of exchange.(s) A bill may be directed to the drawer himself, though it is, in that case, rather a note than a bill.(<)(l) (g) Davis v. Clarke, 13 L. J., Q. B. 305 ; 6 Q. B. 16 (51 B. C. L. R.), a. c. (r) Anon., 12 Mod. 447. (s) Shuttlewortb v. Stephens, 1 Cafflp. 407 ; Rex v. Hunter, R. &. R. C. C. 511 1 Allan V. Mawson, 4 Camp. 115. (t) Block T. Bell, 1 M. & Rob. 149 ; Starke t. Cheesman, Carth. 509 ; Dehers v. Harriot, 1 Show. 163 ; Robinson v. Bland, 2 Burr. 1077 ; Jooelyn v. Laserre, Fort. 282 ; see Davis v. Clarke, 6 Q. B. 16 (51 B. C. L> R.). Byles on Bills, 3d American edition, 145. another's accommodation, he authorizes the other to fill up the date as he may see fit. Androscoggin Bank v. Kimball, 10 Gushing, 373. The signer of a blank note as surety is responsible for any sum for which it may be filled up by the principal though for a sum exceeding that which he authorized, if the holder took it without notice. Fullerton v. Sturgess, 4 Ohio (N. S.), 529. Where a blank was left for the name of an acceptor, and the bill in this state and with an endorser on it was handed to a third person who indorsed it for the accommodation of the drawerand indorser, it was held that the legal intendment of such a transaction was that the blank was to be filled by the name of another person as acceptor, and that the erasure of the name of the prior indorser and its insertion as acceptor was in fraud of the rights of the' last indorser. Mahone v. The Central Bank, 17 Georgia, 111. An indorse- ment on a note or bill, without sum, date, or time of payment, will bind the indorser to pay any sum at any time which the person to whom the indorser intrusts it, chooses to insert. Michigan Ins. Co. v. Leavenworth, 30 Vermont, 11. (1) It is not necessary to constitute a bill of exchange that there should be three distinct parties to it. A bill drawn, by a party upon himself is a bill of exchange in Ihe hands of an indorsee. Randolph v. Parish, 9 Porter, 76. A general request in writing to pay money to the drawer's own order, is a bill of exchange, which the drawer may make payable to himself by indorsement and notice to the acceptor be- fore.it is due. Rice v. Hogan, 8 Dana, 133. It is not necessary that the various parties to a negotiable instrument should be different persons in order to render it a bill of exchange. Wildes v. Savage, 1 Story, 22. An order drawn by the presi- dent of a corporation on the treasurer, payable on demand, may be declared on when dishonored as a bill of exchange. Wetnmpka & Coosa Railroad v. Bingham, 5 Alabama, 657 ; Hasey v. White Pigeon Beet Sugar Co., 1 Douglas, 193. Such a bill is the same, in legal effect, as a promissory note ; it imports a promise to pay on demand, and an action may be maintained upon it without proof of a demand of payment from the treasurer of the corporation. Ibid. Pairchild v. Ogdensburg Bail- ' road Co., 15 New York, 337 ; Lyell v. Supervisors, 6 M'Lean, 446 ; Dennis v. Table Co., 10 California, 369. A draft by an agent of a corporation on the corporation is not a bill of exchange. Mobley v. Clark, 28 Barbour, 390. An order drawn by a corporation on its own treasurer is an acknowledgment of debt by the corporation, but it must be presented for payment before suit. Marion Railroad Co. v. Hodge, 9 AND PROMISSORY NOTES. 181 If the drawer intends that the bill' should be payable at a par- ticular place, he may insert such a direction. Without the words " only and not elsewhere," appended to such direction, the accept- ance will be general, within 1 & 2 Geo. 4, c. 78,(m) so as to charge the acceptor. The drawer himself cannot be charged, unless the |.^- bill have been presented at *the place where the drawer '■ -' himself made it payable.(a;) This statute does not apply to promissory notes ; and therefore, if any place of payment be mentioned in the body of a note, it is part of the contract. The place of payment must be described in the declaration, and a pre- sentment there is essential, in order to charge the maker or any other party.(^) But, where the place of payment is merely stated in a memorandum at the foot or in the margin of the note, by way of direction, it need not be noticed in pleading, and presentment there, though it is sufl5cient,(2) is not essential.(a) But where the whole note was printed (except the names, dates and sum), and a place of payment was also printed at the bottom of the note^ Lord Ellenborough held that a special presentment at this particular place was necessary. (6) If the drawer of a bill makes it payable at his own house, that circumstance is eridence of its being an accommodation bill.(c) (a) Selby v. Bden, 3 Bing. 611 (II E. C. L. E.) ; 11 Moore, 511, s. o. | Fayle t. Bird, 6 B. & 0. 531 (13 E. 0. L. E.) ; 9 Dowl. & R. 639. (x) Gibbs V. Mather, in error, 8 Bing. 214 (21 E. C. L. B.) ; 1 M. & Scott, 387, s. C. ; 2 0. & J. 254, s. 0. ; Hodge v. Fillis, 3 Camp. 463. {y) Sanderson y. Bowes, 14 East, 500 ; Eoche v. Campbell, 3 Camp. 247. (z) Fife v. Eound, 1861. (a) Price v. Mitchell, 4 Camp. 200 ; Exon v. Russell, 4 M. & S. 506 ; 'Williams v. Waring, 10 B. & C. 2 (21 E. C. L. E.) ; 5 M. & R. 9, s. c. But in Hardy t. Wood- rcvffe, 2 Stark. 319 (3 B. C. L. R.), and in Sproule v. Legg, 3 Stark. 156 (3 E. C L. R.), Lord Tenterden held that the note might be described as made payable at a place mentioned in the memorandum only. (5) Trecothick v. Edwin, 1 Stark. 468 (2 E. C. L. E.): (c). Sharp v. Bailey, 9 B. & C. 44 (17 B. C. L. B.) ; 4 M. & R. 4, s. 0. Indiana, 163. A county auditor's order is the promissory note of the county and negotiable. Commissioners v. Day, 19 Indiana, 450. An order on a town treasurer to pay P. or bearer on demand, has all the elements of negotiable paper. Dalrymple V. Whitingham, 26 Vermont, 345 ; Bull v. Sims, 23 New York, 570. The general current of the cases, however, is that county and township warrants or orders are not negotiable, or entitled to the privileges or subject to the rules of commercial paper. They are in fact only payable out of a particular fund. Dyer v. Covington, 7 Harris, 200 : Allison v. Juniata County, 14 Wright, 351 ; Bayergue v. San Fran- cisco, 1 McAllister, C. 0. 175; Dana v. San Francisco, 19 California, 486; Sturte- vant y. Liberty, 46 Maine, 457. 182 OF AMBIGUOUS, CONDITIONAL, AND The 7 Geo. 4, c. 6, s. 10 enacts, that every promissory note uhder 20Z., payable to bearer on demand, must be made payable at the place where issued, but may be made payable at other places also. Bilfs or notes drawn by copartnerships or corporations of more than six persons must, by 7 Greo. 4, c. 46, specify the place of pay- ment, and that place must not be in London, or within sixty-five miles thereof unless in case of a bill for 501., and upwards, drawn payable at some period after date or sight.(rf) But this restriction, as to making the bills payable in London, is now removed by 3 & 4 Will. 4, c. 83, s- 2. And the restriction is further relaxed by 7 & 8 Vict. c. 32, s. 26. Notes of the branches of the Bank of England are payable at the Bank in London; but none of their notes are payable at a branch bank, unless specially made payable at such branch.(e) [*86] *The direction to place to account is unnecessary.(/) A bill is sometimes directed to be paid "as per advice;" some- times " without further advice ;" sometimes " with or without fur- ther advice;" and sometimes, and more commonly without any of these words. In the first case, it is said the drawee is not justified in paying without further advice.(^) [*87] *CHAPTER VIL OF AMBIGUOUS, CONDITIONAL, (a) AND OTHERWISE IRREGULAR INSTRUMENTS. NOTB PAYABLE TO THE MAKEB . . 8t EQUIVOCAL INSTBUMBNTS . . .ST BILLS AND NOTES MUST BE FOB PAY- MENT OF A SUM OF MONEY AND FOB THAT ONLY 89 AND FOB MONEY IN SPECIE ... .89 AND FOB A SUM CEBTAIN . . .90 AND FOE PAYMENT OF IT . . .90 MUST NOT SUSPEND PAYMENT ON A CON- DITION 90 PEBIOD OF PAYMENT MAY BE UNCEE- TAIN IF INEVITABLE . . .92 (d) 7 Geo. 4, c. 46, s. 1. (e) 3 & 4 Will. 4, c. 98, s. 6, which they must now be ; sec p. 64. (/) Laing v. Barclay, 1 B. dc C. 398 (8 E. 0. L. B.) ; 2 D. & fl. 630, s. o. (g) Chitty, 162, 9th ed. (a) As to contracting words in promissory notes, see Chapter ii. OTHERWISE IRRBQULAR INSTRUMENTS. 183 WHERE SEVERAL MAKERS OB SEVERAL PAYEES ARB RESPECTIVELY LIABLE OB ENTITLED IN THE ALTERNATIVE . , 92 MUST NOT BE MADE PAYABLE OUT OP A PARTICULAR FUND . . . .93 IRREGULAR BILL OE NOTE MAY BE AN AQREEMENT . . . ... 93 A Note cannot of course be made by a man to himself without more. Neither can it be made to himself and another man.(6) But a note made payable to the maker's order becomes, in legal effect, when indorsed in blank, a note payable to bearer ;(c) and when specially indorsed, a note payable to the indorsee's order.(d)(l) If an instrument be made in terms so ambiguous that it is doubt- ful whether it be a bill of exchange or a promissory note, the holder may treat it as either, at his election, (e) *Thus, p^j^q-. where for goods sold and delivered, the defendant gave the plaintiff an instrument in the following form : — Mi:lls.5d. London, 5th Augv^t, 1833. Three months after date I promise to pay Mr. John Bury, or order, forty-four pounds eleven shillings and five pence, value received. J. B. Grutherot, John Burt. 35 Montague Place. Bedford Place. (b) See Moffatt v. Tan Millingen, 2 B. & P. 124, n. ; Mainwaring v. Newman, ibid. 120 ; and see Teague v. Hubbard, 8 B. & 0.345 (15 E. C. L. R.). It was for- merly a doubt whether a note promising to pay to the maker's order, or to the maker or order, be a note within the statute. Such a note was sued on in Richards v. Macey, 14 M. & W. 484. It should on principle seem, when indorsed by the maker in blank, to be in legal effect a note payable to bearer. So decided by the Court of C. P. since these observations were written. Browne v. De Winton, 17 L. J., 0. P. 281 ; 6 0. B. 336 (60 B. C. L. R.}, s. c. ; see ante, Chapter iv. (c) Browne v. De Winton, It L. J., 0. P. 280; 6 0. B. 336 (60 E. 0. L. R.), s. o. (rf) Gay V. Lander, 17 L. J., C. P. 287; 6 C. B. 336 (60 E. C. L. R,), s. c. (e) Peto V. Reynolds, 9 Exch. 410 ; Armfield v. Allport, 27 L. J., Bxch. 42 ; Fielder V. Marshall, 30 L. J., C. P. 158 ; 9 0. B., N. S. 606 (99 B. C. L. R.), s. c; and » Court of law, in furtherance of justice and the intentions of the parties, will be astute to put such a construction upon it, ut res magis valeal. But still, if it be a mere in- (1) A note made payable to the maker's own order cannot pass by mere delivery but must be indorsed by the maker. Smalley v. Wight, 44 Maine, 442. Contra. Central Bank v. Lang, 1 Bosworth, 202. 184 or AMBIGUOUS, CONDITIONAL, AND And Grutherot's name was written across the instrument, as an acceptance, and Bury's name on the back as an indorsement, it was held that the plaintiff might treat the defendant Bury~ either as a drawer of a bill or maker of a note, and therefore was not bound to give him notice of dishonor. (/) So where an instrument was in the following form : — 2l8t October, 1804. Two months after date pay to the order of John Jenkins^ £78 : lis., value received. Thomas Stevens. At Messrs, John Morson & Co. Lord Ellenborough held that it was properly a bill of exchange, but that perhaps it might have been treated as a promissory note, at the option of the holder.(^)(l) choate instrument, it is neither a bill of exchange nor a promissory note. .See M'CaU T. Taylor, 34 L. J. 365, and the preceding Chapter. (/) Edis T. Bury, 6 B. & C. 433 (13 E. C. L. E.) ; 9 D. & R. 492 ; see Edwards v. Dick, 4 B. & Aid. 212 (6 E. 0. h. E.) ; Block v. Rell, 1 M. & Eob. 149 ; see Dicken- son T. Teague, 4 Tyrwh. 450; 1 C, M. & E., 241, s. c. ; Lloyd v. Oliver, 18 Q.\B. 471 (83 E. C. L. E.)- {g) Shuttleworth v; Stephens, 1 Camp. 407 ; Allan t. Mawson, 4 Camp. 115 ; Gray V. Milner, 8 Taunt. 739 (4 E. C. L. R.) ; 3 B. Moore, 90 s. o. ; Bex v. Hunter, E. & E. C. 0. 511 ; Armfield v. AHport, 27 L. J., Exch. 42. (1) An indorsement on a bond, ordering the contents to be paid to order for value received is a good bill of exchange. Bay v. Freazer, 1 Bay, 66. So of a request to pay a promissory note, written under the note by the promisor'; and the drawee, after acceptance, is liable to an action. Leonard v. Mason, 1 Wend. 522. As between indorsee and indorser, a promissory note is a bill of exchange as to demand and notice. Crenshaw v. McCiernan, Minor, 295. Where a promissory' note made by a resident of one state, and payable to a person resident in anotber, is indorsed, if the indorsement can be regarded as a bill, it is to be deemed a foreign bill. Carter v. Burley, 9 N. Hamp. 558. A writing, purporting to be a certificate that A. had deposited a sum of money in a bank of the City of New York, dated July 6, 1839, and payable on the 1st December then next, to the order of A., and signed by the president of the bank, was assigned to B. for value received by an in- dorsement thereon, subscribed by A. Held that such indorsement was a bill of exchange, imposing on the parties the ordinary liabilities attached to that kind of paper. Kilgore v. Bulkley, 14 Conn. 362. Although a note be not in form negotiable, Ihe payee may make it so by indors- ing it payable to order, after which it becomes, as between him and the holder, an inland bill of exchange, which an indorsee takes subject to the same rules which govern instruments negotiable in their inception. Brenizer v. Wightman, 7 Watts & Serg. 264. See Leidy v. Tammany, 9 Watts, 353 ; Elkinton v. Fennimore, 13 Penna. State Eep. 173. OTHBRWISB IRREGULAR INSTRUMENTS. 185 A man may draw a bill on himself, (A) and of that opinion were all the Judges of the C. P.(«). Perhaps such a bill would be good where the drawer draws on himself payable to his own order ;{k) and a bill is sometimes drawn payable to the drawee's order. It is conceived, that in the latter *case, as well as the former, r:i-oQ-i the instrument might, when accepted, be declared on as a promissory note of the drawee. But a bill, payable to the drawee's order, is clearly not a bill of exchange. (2) If a man draw a bill upon himself, it may be treated by the holder as a note.(m) So may a bill drawn by a banking company in one place, on the same banking company in another place. (w) An instrument which directs the drawee to pay without accept- ance, is nevertheless a bill of exchange. (o) A note written by the creditor to his debtor at the foot of the creditor's account, requesting the debtor to pay that account to the creditor's agent, has been held not a bill, of exchange, nor an order for the payment of money within the Stamp Act.(p) Bills and notes must be for payment of money only, and not for the payment of money and the performance of some .other act. Therefore, (5') a note to deliver up horses and a wharf, and pay money at a particular day, was held no promissory note. Nor (A) Starke v. Cheesman, Carthew, 508 ; Dekers r. Harriot, 1 Show. 163 j Robiuson V. Bland, 2 Burr. 1077. (j) Magor V. Hammond, 0. P., cited by Bayley J., 9 B. & C. 364 (17 E. 0. L. R.) ; and see Roach v. Ostler, 1 Man. & R. 120. Bylea on Bills, .3d American ed., 145. (S) 1 Pardessus, 351. {I) Reg. V. Bartlett, 2 M. & Bob. 362. See Peto v. Reynolds, 9 Exch. 410. (m) Roach v. Ostler, 1 M. & R. 120. - («) Miller v. Thompson, 3 M. & G. 567 (42 E. C. L. R). (o) Reg. V. Kinnear, 2 M. & Rob. 117 ; Miller v. Thomson, 3 M. & 6. 576 (42 E. 0. L. R.). (p) Norris T. Solomon, 2 M. & Rob. 266. But in America it has been held that ' an indorsement on a bond or promissory note ordering the contents to be paid to order, is a good bill of exchange. Byles on Bills, 3d American edition, 147. (y) Martin v. Cbauntry, 2 Stra. 1271 ; Moore v. Tanlute, B. N. P. 272, 5th ed. ; Follett V. Moore, 19 L. J., Exch. 6 ; 4 Exch. 410, s. c. In this case a note agreeing also to give real security, was held void as a note. But a note reciting that real security had been given, is a good note, and requires only a note stamp. Fancourt V. Thome, 9 Q. B. 312 (58 E. C. L. R.). See ante, Chapter iv. An instrument in this form, " I promise to pay C. A. D. or bearer on demand the sum of 16/. at sight, by giving up clothes and papers, &c.," was held a good promissory note, it being considered that the latter words imported the consideration already, received by the maker. Dixon v. Nuttall, 1 0., M. & R. 307 ; 6 C. & P. 320 (25 E. C. L. R.), s. o. 186 OF AMBIGUOUS, CONDITIONAL, AND must a bill or note be in the alternative, as to pay a sum of money, or render A. B. to prison. (r")(l) And it must be for money in specie, therefore, a promise to pay in three good East India bonds,(s) or in cash, or Bank of England, notes,(«) is not a promissory note.(2) [r) Smith v. Boheme, Gilb. Ca. L. & B. 93, cited Lord Eaym. 1396. (s) Bui. N. P. 272. (t) Bayley, 11, 6th ed. ; Ex parte Imeon, 2 Rose, 225; bnt see 3 & 4 Will. 4, c. 98, B. 6 ; and Byles on Bills, 4th American edition. (1) A note promising to paj A. a given sum in one from the first of October fol- lowing the date, in cattle or in grain the first of January following, held void for uncertainty. Wainwright v. Straw, 15 Verm. 215. A note payable "twenty-four after date " is not void for uncertainty, nor is It a note on demand ; it is payable some time after date. Such a note is admissible in evidence without other testi- mony, under an averment in the declaration that twenty-four months after date was the time meant by the parties, the jury being the judges of the fact of the time of payment intended. Conner v. Routh, 1 How. Miss. 176. See Henschel v. Mahler, 3Denio, 428; Sweetser v. French, 13 Metcalf, 262; White v. Word, 22 Alabama, 442 ; Burnham v. Atters, 1 Gray, 496 ; Nichols v. Frothingham, 45 Maine, 220 ; Pearson v. Stoddard, 9 Gray, 199. In ascertaining the amount of a note, where there is an uncertainty, it was held that the words in the body, not the figures in the margin, should govern. Mears v. Graham, 8 Blackf. 144 ; Smith v. Smith, 1 Rhode Island, 398. In an action on a note for "the sum of fifty-two 25-100," it was held that the fraction showed beyond 619 (24 E. 0. L. R.) ; 1 N. & M. 412, s. c. (x) Smith V. Nightingale, 2 Stark. 375 (3 E. 0. L. K.) ; Barlow v. Broadhurst, 4 B. Moore, 471 ; and see Leeds v. Lancashire, 2 Camp. 205 ; Bolton v. Dagdale, 4 B. & Ad. 619 (24 B. C. L. R.) ; 1 N. & M. 412, B. 0. ; 2 Bligh, 79 ; Ajrey v. Fearnsidea, 4 M. & W. 168. (y) Davies v. Wilkinson, 10 A. & E. 98 (37'E. C. L. R.) ; 2 P. & D. 256, s. 0. funds is held to mean either coin or notes of the Missouri Bank — a bank authorized by the State — and in Texas the terms " bank notes," " good bank notes," or " cur- rent bank notes," as employed by them, are held to import in their ordinary accep- tation such bank bills only as are redeemable in gold or silver, or such as are equivalent thereto A contract for the payment of a certain sum in bank notes or other paper currency may or may not be equivalent to that sum in specie. The extent of the obligation depends on the meaning which usage affixes to the terms, at the time the contract was made. Usage gives force and effect to language ;' and as terms are generally understood in the ordinary transactions of life, so should they be construed by courts of justice. 1 Texas, 246. As to bills or notes payable in goods or merchandise, see Jerome v. Whitney, 7 Johns. 321 ; Thomas v. Roosa, Ibid. 461 ; Pray v. Pickett, 1 Nott & McCord, 254; Rhodes v. Lindley, 1 Hamm. Ch. Eep. 51 ; Atkinson v. Manks, 1 Cowen, 691 ; Law- rence V. Doherty, 5 Yerger, 435 j Burns v. Graham, 4 Cowen, 452 ; Wyman v. Wins- low, 2 Fairf. 398 ; Bailey v. Symonds, 6 N. Hamp. 159 ; Smith v. Loomis, 7 Conn. 110. See ante p. 5, n. (1). As to bills or notes payable in bank notes, see Keith v. Jones, 9 Johns. 120 ; Judah V. Harris, 19 Ibid. 144 : Leiber v. Goodrich, 5 Cowen, 136 ; Lange v. Kohne, 1 McOord, 115; Jones v. Fales, 4 Mass. 245; McOormick v. Trotter, 10 Serg. & Rawle, 94 ; Digberty v. Dumell, 5 Yerger, 451 ; Gray v. Donahoe, .4 Watts, 400 ; 3 Kent's Com. 76. 188 OF AMBIGUOUS, CONDITIONAL, AND events ;(1) and payment must not depend upon a contingency; for, as observed by Lord Kenyon,(2) " It would perplex commercial transactions, if paper securities of this kind were issued into the world, incumbered with conditions and contingencies, and if the persons to whom they were offered in negotiation were obliged to inquire when these uncertain events would probably be reduced to a certainty." Besides, the recognition of conditional promissory notes would make a variety of conditional promises in writing valid, without evidence of consideration, and thus materially infringe on an established and very salutary rule of law.(a) Thus, a note to this effect, "We promise to pay A. B. 11 6Z. lis. value received, on the death of George Henshaw, provided he leaves either of us sufficient to pay that said sum, or if we otherwise shall be able to pay it," is not a promissory note within the statute. (5) So, a written engagement to pay a certain sum so many days after the defendant's marriage, is no promissory note, for, possibly, he never may marry.(c) So, a paper, whereby the defendants promised r*Qn **° P^y *^® plaintiffs, or order, the sum of 13?., for value received, with interest at 51. per cent., "and all fines, ac- cording to the rule," cannot be declared on as a promissory note.(c?) So, an order payable, "Provided the terms mentioned in certain letters, written by the drawer, were complied with," is no bill.(e)' So a note promising to pay, "On the sale or produce of the White Hart, St. Alban's, Herts, and the goods, &c., value received," is not a promissory note, though it be averred that, before action brought, the White Hart and the goods were sold.(/) The follow- ing instrument was held not to be a note: "Borrowed and received of A. the sum of 200Z. in three drafts, by B., dated as under, pay- able to us on C, which we promise to pay to the said A., with interest." The instrument then specified the drafts which fell due at a future day. Lord EUenborough observed, "There can be no doubt that the money was not payable immediately, and that it (iz) Carlos v. Fancourt, 5 T. R. 482. (a) See Pearson v. Garrett, 4 Mod. 242. (i) Eoberla v. Peake, 1 Burr. 323 ; Leeds v. Lancashire, 2 Camp. 205. (c) Beardsley v Baldwin, 2 Stra. 1151 1 and see Pearson v. Garrett, 4 Mod. 242 ; Copab. 22T, s. 0., which was before the statute 3 & 4 Anne, c. 9. {d) Ayrey t. Fearnsides, 4 M. & W. 1 68. (e) Kingston v. Long, Bajley, 16, 6th ed. (/) Hill v. Halford, 2 B. & P. 413. (1) Bunker v. Atheam, 35 Maine, 364. OTHERWISE IREEGPLAR INSTRUMENTS. 189 was not to be paid at all, unless the drafts were honored. "(^) So, an order to pay at thirty days after the arrival of the ship Paragon at Calcutta, was held to be no bill of exchange. (A) So, an order to pay " 14Z. 38. out of the fifth payment, when it should be due, and should be allowed by J. S." is no bill of exchange.(«) But, "I promise to pay to J. S., or his order, at three months after date, as "per memorandum of agreement," was held to be a promis- sory note, and that if the agreement made the promise conditional, the defendant ought to have shown it by setting it out in his plea.(it) An instrument in this form, " At twelve months I promise to pay A. B. 500Z., to be held by them as collateral security for any moneys now owing to them by M. & M., which 'they may be unable to recover on realizing the securities they now hold and others which maybe placed in their hands by him," is no promissory note.(Zj *But it is not material that the time when the event may ri^nTfi • happen is uncertain, provided it must happen at soma time cr other ; thus, a note payable on the death of A. B., or of the maker, is good.(jw) So, a note payable when a King's ship shall be paid off, has been held to be a good note, the Court of Error observing, " The paying off of the ship is a thing of a public nature."(w) But it is said,(o) that the court below assigned as a reason, that the (^) Williamson v. Bennett, 2 Camp. 417 ; and see Clarke v. Perceval, 2 B. & Ad. 660 (22 E. C. L. E.) ; Shenton T. James, 5 Q. B. 199 (48 B. C. L. B.) ; Drury v. Macaulay, 16 M. & W. 146 ; Alexander t. Thomas, 16 Q. B. 333 (71 E. C. L. R.) ; Storm T. Stirling, 3 E. & B. 832 (77 B. C. L. E.) ; Cowie v. Stirling, 6 E. & B. 333 (88 E. C. L. E.). (A) Palmer v. Pratt, 2 Bing. 185 (9 E. 0. L. R.) ; 9 Moo. 358 ; Clarke v. Perceval; 2 B. & Ad. 660 (22 E. C. L. E.) ; Worley v. Harrison, 5 Nev. & M. 173 : 3 A. & E. 669 (30 E. C. L. B.), s. c. («■) Haydock t. Lynch, 2 Ld. Eaym. 1563. (A) Jury V. Baker, E., B. & B. 459 (96 E. C. L. E.). \l) Eobins v. May, 11 A. & E. 214 (39 E. C. L. R.) ; 3 Per. & D. 147; 3 Jurist, 1188, s. c. (m) Cooke v. Oolehan, 2 Stra. 1217 ; Eoffey y. Greenwell, 2 Per. & Dav. 365 ; 10 A. & E. 222 (37 B. C. L. E.). , (n) Andrews v. Franklin, 1 Stra. 24 ; Evans v. Underwood, 1 Wils. 262. (o) And see Haussoullier t. Hartsink, 7 T. E. 733 ; Dixon t. Nuttall, 6 C. & P. 320 (25 E. C. L. R.) ; 1 C, M. & E. 307, s. c. ; Goss v. Nelson, 1 Burr. 226. " I promise to pay or cause to be paid," is a good note, the alternative expression importing the same thing. Lovell v. Hill, 6 C. & P. 238 (25 E. C. L. E.). 190 OF AMBiaUOTJS, CONDITIONAL, AND ship would certainly be paid off one time or other.(p) The con- tingency, in order to vitiate the note as such, must be apparent on the face of the- instrument.(g') A promissory note payable with interest, twelve months after notice, is not to be considered as payable on a contingency, and is, consequently, valid.(r) The happening of the contingency on which the payment of the bill is dependent will not cure the defect.(s) A note beginning, "I, A. B., promise, &c." and signed A. B., or else C. D., is a good note against A. B., but only evidence as against 0. D. of a conditional agreement to pay if A. B. does not.(«) In this last case the maker was uncertain ; the note, as such, is not available at all,', if the payee be uncertain. Thus, where the maker promised to pay to A. or to B. and C. a certain sum, Abbott, C. J., said, " I have no doubt this instrument is not a promissory note within the statute of Anne : for, if a note is made payable to One or other of two persons, it is payable only on the contingency of its not having been paid to the other, and is not a good promis- sory note within the statute."(?^) So a bill of exchange or promis- |-^qQ-| sory note payable after date to the *secretary for the time being of a company is void as a bill or note, (a;) Upon the same principle, the bill or note must not be made payable out of a particular fund,(«/) for the fund may prove insiffi- cient.(l) Plaintiff drew upon A., and required him to pay B. 11 (p) Colehan v. Cooke, Willes, 399 ; 1 Selw. N. P. 375. A note to an infant, pay- able when he shall come of age, has been held good, if it specify the particular day. Goss T. Nelson, 1 Burr. 226; 1 Lord KenyoO, 498, a. o. (?) Richards v. Richards, 2 B. & Ad. 447 (22 E. 0. L. R.). (r) Clayton v. Gosling, 5 B. & C. 360 (11 E. C. L. R.) ; 3 D. & R. 110, S. 0. («) Chitty, 7th ed. 45 ; Hill v. Halford, 2 B. & P. 413 ; Chitty, 9th ed, 135, 144- (t) FerrisY. Bond, 4 B. & Aid. 679 (6 E. C. L. R.); and see Appleby t. Biddulph, B. N. P. 272, cited Morice v. Lee, 8 Mod. 363; 4 Vin. Ab. 240, pi. 16. («) Blanckenhagen v. Blundell, 2 B. & Aid. 417. (s) Storm T. Stirling, 3 E. & B. 832 (77 E. C. L. R.) ; Cowie v. Stirling, 6 E. & B. 333 (88 E. C. L. R.) ; Yates v. Nash, 8 C. B., N. S. 581 (98 E. 0. L. R.). (y) Jenny t. Herle, 2 Ld. Raym. 1361 ; 8 Mod. 265 ; 1 Stra. 591, s. o. ; Haydock V. Lynch, 2 Ld. Raym. 1553; Dawkes v. Lord de Loraine, 2 W. Bla. 782 ; 3 Wils. 207, s. 0. ; Yates v. Grove, 1 Ves. juu. 280 ; Carlos v. Fancourt, 5 T. R. 482. (1) It is essential to a bill or note that it be payable in money only at all events, and not out of a particular fund. Atkinson v. Hanks, 1 Cow.. 691 ; Cook v. Sat- OTHEKWISE IREEGULAE INSTEUMENTS. 191 per month out of plaintiff's growing subsistence. This was held no bill of exchange : for, had plaintiff died, or his subsistence been taken away, the bill would not have been payable. (2) So, an order from the owner of a ship to the charterer, to pay money on account of freight, is no bill ; for the future existence and amount of any debt due for freight, are subject to a contingency. (a) And the (2) Josselyn v. Lacier, 10 Mod. 294; Port. 281, s. 0. ; see Russell v. Powell, 14 M. & W. 418. (o) Banbury v. Lissett, 2 Stra. 1211. terlee, 6 Cow. 108 ; Waters v. Carlton, 4 Porter, 205 ; Tucker v. Maxwell, 11 Mass. 143 ; Wooley v. Sergeant, 3 Halst. 262 ; Mills v. Kuykendall, 2 Blackf. 4" ; May v. Lansdown, 6 J. J. Marsh. 170; Van Yacter v. Flack, 1 Smedes & Marsh. 393 ; Ha- milton V. Myrick, 3 Pike, '541 ; Elce v. Porter, 1 Harr. 440 ; Wallace v. Dyson, 1 Spears, 127; Strader v. Batchelor, 8 B. Monroe, 168; Warden v. Dodge, 4 Deuio, 159 ; Wilamoice v. Adams, 8 English, 12 ; Kinney v. Lee, 10 Texas, 155 ; Owen v. Lavine, 14 Arkansas, 389 ; Averott v. Booker, 15 Grattan, 163 ; Van Wagner v. Terrett, 27 Barbour, 181 ; Gliddou v. McKinstry, 28 Alabama, 408 ; Harriman v. Sanborn, 43 New Hampshire, 128. An order of a client on an attorney, to pay money out of any sum collected for him is not a bill of exchange. Crawford v. Cully, Wright, 453. So an order for a certain amount in merchandise is not a bill of exchange. Gwinn v. Roberts, 3 Pike, 72 ; Bradley y. Morris, 3 Scamm. 182 ; Carleton t. Brooks, 14 New Hamp. 149. An order to pay over rents accruing up to a specified time, is not a bill of exchange, though the rents were payable in money. Morton v. Naylor, 1 Hill, 583. ■ An order in this form, " On Ist January, 1836, pay to my order five thousand dollars, for value received, and charge the same to my account for transporting the United States mail," is not negotiable, so as to entitle the holder to sue in his own name. Reeside v. Knox, 2 Whart. 233. A draft on the General Post Office to pay from certain funds, is not a bill of exchange. Raiguel T. Ayliff, 16 Arkansas, 594. An order drawn upon the treasury by a public officer, for his salary, is not a bill of exchange. Strader v. Batcheler, 8 B. Monroe, 168. A bill of exchange in form, drawn by one government on another, as the bill drawn by our government on the government of France, for moneys due according to a treaty stipulation. Is not and cannot be governed by the law merchant, and therefore is not subject to protest and consequential damages. United States v. Bank of the United States, 5 Howard (U. S.) Rep. 382. An order drawn in express terms for a particular fund, will operate as an assignment of the fund ; but it will not be nego- tiable, and is not a bill of exchange. Cowperthwaite v. Sheffield, 1 Sand. Sup. Ct. Eep. 416. A bill of exchange, although accepted, does not operate to invest the payee with the character of an assignee of a particular fund, unless drawn on such fund. Wheeler v. Stone, 4 Gill. 38. If the fund described in a bill is certain, and is mentioned only as a means by which the drawee is to be indemnified, the bill is good. Banck, &o., v. Sanders, 3 Marsh. 184; Varner t. Nobleborough, 2 Greenl. 123; Kelly v. Mayor, &c., 4 Hill, 263; Wiggin v. Taught, Cheves, 91; Hoyt v. Lynch, 2 Sandf. Sup. Ct. Rep. 328 ; Smith v. Ellis, 29 Maine, 442 ; see West v. Foreman, 21 Alabama, 400 ; Shields v. Taylor, 25 Mississippi, 143 ; Coursin v. Led- lie's admin's. 7 Casey, 506 ; Lowery v. Steward, 3 Bosworth, 505. 192 OF AGREEMENTS INTENDED TO CONTROL same rule holds if the contingency is expressed on the back of the note, by an indorsement made before the note was a perfect instru- ment. (6) But the statement of a particular fund in a bill of exchange -will not vitiate it, if introduced merely as a direction to the drawee how to reimburse himself: thus, a bill directing the drawee to pay J. S. 91. 10s., "as my quarterly half-pay," was held to be a good bill.(c) If the instrument be defective as a bill or note, it still may be evidence of an agreement, (d^) [*94] *CHAPTER VIII. OF AGREEMENTS INTENDED TO CONTROL THE OPERATION OF BILLS OR NOTES. VABIonS SOETS Of AGBEEMENTa . 94 EEEEOT OP OONTEMPOBANEOnS AGREE- MENT WRITTEN ON THE INSTEDMEJJT 94 EFFECT OF AN AGREEMENT SUESE- QnENTLY WRITTEN ON THE INSTED- MENT 95 EFFECT OF AGREEMENT WRITTEN ON A. DISTINCT PAPER . . . .95 AGREEMENT OONTEMPOBANBOtTS BUT COLLATERAL . . . .95 EFFECT OF AN ORAL AGREEMENT . 96 DELIVERY IN THE NATURE OF AN ES- CROW 96 AGREEMENT TO RENEW . . .97 AGREEMENT ON BILL MUST BE BEAD . 91 PLEADING AN AGREEMENT . . .97 Such agreements are either written or oral. A written agreement is either on the instrument itself or on a distinct paper. Again, a written agreement on the instrument itself, is either contemporaneous with the completion of the bill or note, or it is a subsequent agreement. • Once more even a contem- poraneous written agreement may either be parcel of the instru- ment, or it may be collateral. A memorandum on a bill or note, made before it is complete, is (6) Leeds v. Lancashire, 2 Camp. 205. (c) Macleod v. Snee, 2 Sir. 762. (d) As to the proper stamp in su<;h a case, see post. THE OPERATION OF BILLS AND NOTES. 193 sometimes considered as part of the instrument, so as to control its operation, and sometimes not.(l) If the memorandum make the payment contingent, we have seen that it will be incorporated in the in8trument.(a) *But, where it is merely directory, as if it point out the place of ^ -• payment,(J) or be merely the expression of an intended courtesy, as if it intimate a wish that the money lent should not be called in by the payee's executors till three years after his death ;(c) or if it import that a collateral security (as the deposit of title deeds) has been given ;(cJ!) or be intended only to identify and ear-mark the instrument ;(e) it does not affect its operation. But a memorandum of the time when a note falls due may correct an error in the date.(/) A memorandum made after the note is perfected and delivered is an independent agreement, requiring an agreement stamp. "If," says Lord Ellenborough, "the memorandum was subsequently written, when the note had been perfected and delivered in its absolute state, it could not be considered as a part of that instru- ment, though it chanced to be inscribed upon the same piece of paper. In that case, it was an agreement by way of defeasance, (o) Leeds v. Lancashire, 2 Oamp. 205; Hartley v. Wilkinson, 4 M. & S. 25.;. 4, Camp. 127, s. 0. Though by way of indorsement; Leedis v. Lancashire, ubi supra, A joint and several promissory note had an indorsement in this form ; ."The within, note is given for securing floating advances from the Lincoln and Lindsay Banking ' Company, to the Tvithin-named Thomas Smith, sen., (one of the joint and several makers of the note), with lawful interest for the same from the respective! times when such advances have been or may be made, together with commission, stamps, postages, kc, and all usual charges and disbars,ements, not exceeding in the whole, the sum of lOQl. within mentioned." It was held to be an agreement which could not be read in evidence without an agreement stamp. Sed quaere, whether the in- dorsement were anything more than an explanation of the consideration. Cholmlej V. Darley, 14 M. & W. 344. See the Chapter on Consideration. (4) Exon V. Russell, 4 M. & S. 505. (c) Stone V. Metcalfe, 4 Camp. 217; 1 Stark. 53 (2 E. C. L. E.), s. 0. (d) Wise V. Charlton, 4 A. & E. 786 (31 E. C. L. R.) ; 6 Nev. & M. 364 ; 2. Har. & W. 49, s. c; Fancourt v. Thome, 9 Q. B. 312 (58 E. 0. L. R.). (e) Brill v. Crick, 1 M. & W. 232. (/) Pitch V. James, 5 E. & B. 238 (85 E. C. L. R.). And see Fanshawe v. Peet^ 2 H. & N. 1. (1) A note will be controlled by any thing written on or appended to it by the parties. Eppinger v. Richards, 35 Mississippi, 540. 13 194 OP ASREBMBNTS INTENDED TO CONTROL and it lay upon the defendant to produce it ■with a proper stanup."(5^) A written agreement, on a distinct paper^ to renew, or in other respects to qualify, the liability of the maker. or acceptor, is good as between the original parties.(A) Thus,, if the drawer agree to indemnify the acceptor against a claim by other parties, for a por- tion of the sum for which the bill is drawn, and the acceptor after- wards pays those other parties a sum to which the indemnity applies, the acceptor's liability, as between himself and the drawer, will be reduced pro tanto, and he will not be turned round to his cross action on the indemnity.(«) But a written agreement, though contemporaneous, will not restrain the operation of the bill or note if it be collateral, e. g., if other persons besides the parties to the bill or note be parties to \i.{h) . *!No mere oral agreement can have any effect at law in 1- J controlling the instrument, if contemporaneous with the making of it ; for that would be to allow oral evidence to vary a written contract. (Z) "Every bill or note," says Parke, J., "im- ports two things, value received, and an engagement to pay the amount on certain specified terms. Evidence is admissible to deny the receipt of value, but not to vary the engagement."(m)(l) .(;. 21. (q) 17 & Vict. c. 83. (r) 23 Vict, c 15. («) 55 Geo. 3, c 184.; a08 OF THE STAMP. hereafter to be prescribed by his Majesty's orders, by the paymasters of regiments or corps, or by the chief paymaster, or deputy paymaster, and accountant of the ^ army dep6t, or by the paymasters of recruiting dis- tricts, or by the paymasters of detachments, or by the officer or officers authorized to perform the duties of the paymastership during the vacancy, or the absence, suspension or incapacity of any such paymaster, as aforesaid ; save and except such bills as shall be drawn in favor of contractors, or others, who furnish bread or forage to his Majesty's troops, and who, by their con- tracts or agreements, shall be. liable to pay the stamp duties on the bills given in payment for the articles sup- plied by them. Promissory ]froTE(i!) for the payment to the bearer on de- mand, of any sum of money(M) — Not exceeding 11. 1«. . Exceeding 11. Is. and not exceeding 21. 2s. 21. 2s. bl. 5s. lOL 20Z. 30Z. 50?. bl. 5s. im. 20Z. mi. 60Z. IWl. £ s. d. 5 10 1 3 1 9 2 3 5 8 6 Which said notes may be reissued, after payment thereof, as often as shall be thought fit.(a;) r*1fl'i1 *I'''0™issory note for the payment in any other manner than to the bearer on demand of any sum of money(«/) Not exceeding 51. ...... . 1 {t) It was once held that a promissory note for lU. to A. B. on demand, without the words " or bearer," was a note payable to bearer on demand within this class and reissuable. Keates t. Whieldon, 8 B. & C. 7 (15 E. C. L. R.) ; 2 M. & Ry. 8, s. 0. This case, however, was always considered doubtful, and is now overruled. Cheetham r. Butler, 5 B. & Ad. 83T (22 E. 0. L. R.) ; 2 N. & M. 453, s. 0. ; Dixon T. Chambers, 1 0., M. & R. 845 ; 5 Tyr. 202 ; 1 Gale, 14, s. o. (m) 55 Geo. 3, c. 1S4. (x) They can be lawfully issued by licensed bankers only, and the issuing of any for sums less than 51. is prohibited in England by 7 Geo. 4, c. 6, and in Scotland by 8 & 9 Vict, c, 38. (j,) 17 & 18 Yiot. c. 83. OF THE STAMP. 209 Exceeding 5?. and not exceeding 10?. " 10?. " 25?. a 25?. a 50?. a 50?. a ■ 76?. a 75?. y the statute be joint only, yet a joint and several note is within the exemption. Bradburne v. Whitbread, 5 M. & G. 439 ; see ante, p. 7. («) 18 & 19 Vict. ». 63. (x) 17 & 18 Vict. c. 83; 23 & 24 Vict. c. Ill ; and see the Chapter on Foreign Bills as to stamps on bill, foreign, Scotch, Irish, or Colonial. (y) 55 Geo. 3, c. 184, s. 11. (z) Sect. 14. (a) Sects. 24, 25, 26, 27, 28 ;' 1 Geo. 4, c. 6 ; and see 9 Geo. 4, c. 23, ss. 1, 12. (J) Sect. 19. Holroyd v. Whitehead, 1 Marsh. 128. (c) Morley v. Culverwell, 7 M. & W. 1 74, by the party primarily liable ; see Bar- trum v. Caddy, 9 A. & B. 275 (36 E. C. L. B.) ; 1 P. & D. 207, s. 0. (rf) 55 Geo. 3, c. 184, s. 27. 214 OF THE STAMP. the drawer and paid hy Mm, he may, -without a fresh stamp, indorse the hill over to a new party, who may sue the aeceptor.(e) But it is otherwise if the payee were a third person. (/) Or if the drawer were the party ultimately liable to pay the bill.{^) As to foreign stamps on foreign bills, see the Chapter on Foreign Bills. As to the stamps on Irish or Colonial bills, see the same Chapter. r*1 1 m *'^ question sometimes arises as to what shall be deemed such a making within this country as to subject an instru- ment to the English Stamp Laws. On this subject, see the Chapter on Foreign Bills. ' A bill not duly stamped is not available, nor evidence, in law or equity, for any purpose in furtherance of its original design, not even as an admission. (A) Defendant indorsed to plaintiff a bill on an insuflBcient stamp, in payment of goods sold : plaintiff delayed presenting it for payment, and the acceptor became unable to pay. Defendant proved that the bill would have been paid if presented at maturity. Held, that the bill never operated as a suspension of the debt, and that the pla.intiff's laches did not discharge the defendant.(z) So, the indorser of a bill drawn on an insufficient stamp, is not discharged from his debt by neglect of the indorsee to present or give him notice of dishonor.(Ji;) But an instrument not duly stamped may be looked, at for a collateral purpose. Action («) Callow V. Lawrence, 3 M. & S. 95. ■ (/) Beck V. Robley, 1 H. Bla. 89 ; and see Graves v. Key, 3 B. & Ad. 313 (23 B. C. L. R.)- (9) Lazarus v. Cowie, 3 Q. B. 465 (43 E. C. L. K.). (h) Wilson V. Vysar, 4 Taunt. 288 ; Jardlne v. Payne, 1 B. & Ad. 663 (20 E. 0. L. B.) ; Cundy t. Marriott, 1 B. & Ad. 696 (20 E. C. L. R.). But an unstamped instrument is admissible to prove an agreement illegal, Coppock v. Bower, 4 M. & W. 361 ; or to prove usury, Nash v. Duncomb, 1 M. & Rob. 184 j or to corroborate a witness,- Dover v. Maestaer, 5 Esp. 92 ; or to refresh his memory, Maugham v. Hubbard, 8 B. & C. 14 (15 B. 0. L. R.). And the Court of C. P. have allowed a^ unstamped bill to be given in evidence to negative by anticipation a plea of payment. Smart v. Nokes, 6 M. & G. 911 (46 B. C. L. R.). Sed gutere. (i) Wilson V. Vysar, 4 Taunt. 288. (4) Cundy v. Marriott, 1 B. & Ad. 696 (20 E. C. L. R.) : Wilson v. Vysar, 4 Taunt. 288 ; Plimley v. Westley, 2 Ring. N. 0. 249 (29 E. C. L. R.) ; 2 Scott, 423 ; 1 Hodges, 324, s. c. OB THE STAMP. 216 for money lent ; the plaintiff's witnesses proved that plaintiff had lent defendant 40Z., and that defendant had given him a promis- sory note on unstamped paper. The defendant's case was, that plaintiff had inveigled him to drink, and that the transaction was fraudulent. The note was produced. Lord Ellenhorough : " The note certainly cannot be received in evidence as a security, or to prove the loan of the money ; but I think it may be looked at by the jury as a contemporary writing to prove or disprove the fraud imputed to the plaintiff." The note was put in, and had very much the appearance of having been written by a drunken man. Ver- dict for the defendant.(Z) The statute 17 & 18 Vict. c. 83, s. 27, contains an express provision that an unstamped instrument may be admitted in any criminal proceeding. But long before that statute it *had been held that it is no defence, on a prose- r*-!-!-!-] cution for forgery, that the instrument was not duly stamped. (m) So, it has been held, that if A. and B. enter into a written agreement, duly stamped, and afterwards enter into another written agreement on the same subject-matter, but inconsistent with the first, and not stamped, though the plaintiff cannot give the second agreement in evidence, it may be looked at by the Court to prove that the first agreement was rescinded. (w) But where the acceptor of the bill required the drawer, who was an illiterate person, to take his second acceptance at six months, in lieu of pay- ment, and the drawer having assented, the acceptor's son wrote the second bill on the back of the first, and the drawer and acceptor signed the second bill, and then the acceptor's son drew a line through the acceptance on the first bill : it was held, in an action on the first bill by the drawer against the acceptor, that the second bill could not be submitted to the jury for the purpose of enabling them to judge whether the cancelling of the original acceptance were with the assent of the plaintiff, (o) [1) Gregory v. Eraser, 3 Camp. 454. And see Holmes v. Sixsmith, 1 Exoh. 802 ; Watson V. Poulson, 15 Jur. 1111 ; Keable v. Payne, 8 A. & B. 655 (35 E. C. L. R.) ; Reg. V. Gompertz, 9 Q. B. 824 (58 B. 0. L. R.). (m) Rex v. Hawkswood, Bayley, 91, 6th ed. ; 3 East, P. 0. 955 ; Rex v. Teague, Bayl. 5T4, 6th ed. ; 2 East, P. C. Y9, s. 0. («) Reed v. Deere, 7 B. C. 261 (14 E. C. L. R.) ; see Swears v. Wells, 1 Esp. 317. (o) Sweeting v. Halse, 9 B. & G. 365 (17 E. 0. L. R ) ; 4 M. & Ry. 287, s. 0. It was held in Jones t. Ryder, 4 M. & W. 32, that a promissory note improperly stamped could not be received in evidence to take a case out of the Statute of Limitations ; and see Holmes v. Mackrell, 3 C. B., N. S, 789 (91 B. C. L. R.). , 216 OF THE STAMP. The 3 & 4 Will. 4, c. 97, ss. 16 and 17, empowers the commis- sioners of stamps from time to time to change the dies on giving proper notice. A bill or note stamped with a superseded die is to be considered as unstamped. This objection need not be pleaded.(p) A bill accepted in blank on a proper die, but filled up after the die is changed, is void.(g') Though the commissioners are in general prohibited, by the 31 Geo. 3, c. 25, s. 19, from stamping any bill or note, after it has been made, yet, if so stamped, it may nevertheless be valid in the hands of an indorsee.(r') Lord Kenyon observed, "that though the commissioners might have exceeded their duty in stamping a bill against the positive directions of the Act of Parliament, still, that being stamped,, he thought it was become a valid instrument, and a Judge *at iVm Prius could not inquire how and at !- J what time it was stamped. Much inconvenience might arise, and a great check be put upon paper credit, if the objection was to be allowed ; for how was it possible for a man, taking a bill in the ordinary course of business, to know whether it had been stamped previous to the making of it or not ?" The authority of the preceding case has been recognized in a later case ;(a) but it is there intimated that the decision would have been different, had the plaintiff been the original party to the instrument, or had it 'carried on the face of it evidence that it was stamped after it came into the plaintiff's hands, or after it was issued. And it is con- ceived that if it can be distinctly shown, that the plaintiff, who sues on a bill,, became the holder while it was unstamped, he can- not recover on it. The reservation of interest on a bill or note does not, in any case, make a larger stamp necessary; for the object of the Legis- lature was to impose a pro raid stamp duty on the sum actually due at the time of taking the security, and not upon what might become, due in future for the use of the money.(f) Although (j>) Dawson v. McDonald, 2 M. & W. 26. (y) Abrahams v. Skinner, 12 A. & E. 763 (40 B. C. L. B.). (r) "Wright v. Eilej, Peake, 173; Rodriok t. Hovill, 3 Camp. 103; Rapp. v. AUnutt, Ibid. 106. (s) Green v. Davies, 4 B. & C. 235 (10 E. 0. L. B.) ; 6 D. & R. 306, s. o. As to post-stamping a cognovit, see Rose v. Tomlinson, 3 Dowl. 49. {t) Pruessing v. Ing, 4 B. & Aid. 204 (6 E. C. L. R.). OP THE STAMP. 217 interest be reserved from a day prior to the date of the instru- inent.(M) Though postdating a bill, so as to evade the proper duty, 'sub- jects, as we have seen, to a heavy penalty, yet, if it be thus post- dated, it -will not require the higher stamp,(a;) for the word "date" in the Stamp Act (55 Geo. 3, c. 184, sched.) means the date expressed on the face of the bill. An instrument, which in point of law is but an agreement, and not one of that class of agreements, which, as irregular instru- ments approaching the form of bills and notes, are chargeable with a diiferent duty, requires, where the matter thereof is of the value of 51., a stamp of &d. only.(?/) An agreement requiring, when made, a stamp of 11. or 2s. 6d.,(3) may afterwards, on payment of the penalty, be well stamped with the stamp now in force. (a) *A note, reciting that deeds had been deposited as a r:(c-i-|o-i security, does not, as a note, 'require a mortgage stamp. (6) After payment of money into Court on the whole declaration, it was. formerly held that the defendant could not object to the insuf- ficiency of the stamp. (c) This point can scarcely arise in the superior Co.urts since the New Rules of Pleading. The objection to the want of a stamp should in general be ta]£,en before the instrument is read. But where the defect requires ex- trinsic evidence to show it, as where a chpek has been post dated, the instrument is to be shown to the judge, and the ground of objection afterwards proved.((^) If a judge at Nisi Prius rule (u) Wills T. Noot, 4 Tyrw. 726. ' •' ■ ' {x) Upstone t. Marchant 2 B. & C. 10 (9 E. 0. L. B.) ; 3 D. & R. 198, s. c. ; Pea- cock T. Murrell, 2 Stark. 558 (3 E. 0. L. R.) ; Williams v. Jarrett, 5 B. & Ad. 32 (27 B. C. L. R.) ; 2 N. & M. 49, s. 0. ; Duck v. -Braddyll, M'Olel. 235 ; Whistler v. Foster, 14 0. B., N. S. 248 (108 E. C. L. R.) ; Austin v. Bunyard, 34 L. J. 217, Q. B. (y) 55 Geo. 3, c. 184 1 Y Vict. c. 21 ; 13 & 14 Vict. c. 97 ; 23 Vict. c. 15. (2) 13 & 14 Vict. c. 97, sched. (a) Buckworth v. Simpson, 1 C, M. & B. 834 ; Doe v. Whittingham, 4 Taunt. 20 ; Deakiu v. Pennial, 17 L. J., C. P. 217 ; 2 Exch. 320, s. 0. (i) Fancourt t. Thorne, 9 Q B. 312 (58 B. 0. L. R.). (c) Israel v. Benjamin, 3 Camp. 40. {d) Field v. Woods, 7 Ad. & El. 114 (34 B. C. L. E.) ; 2 Nev. & P. 117, s. c. 218 OE THE CONSIDBKATION. against a stamp objection, his decision cannot be reviewed,(e) and he ought not to reserve the point. (/) The absence of a stamp 6n a bill or note cannot be pleaded, unless the plea show that the instrument cannot be made good- by being stamped before the trial. (^) [*114] *CHAPTBR X. OF THE CONSIDERATION. PRESUMPTION AS TO OONSIDBBATIONS ON BILLS AND MOTES . . .114 WHEN IT MUST BE PKOVKD . .115 IN THE CASE Of AN ACCOMMODATION BILL . . . . .115 Ei'PEOT OP NEW RULES OP PLBADINS . llT AMBIGUITY OP THE EXPRESSION "BONA FIDE HOLDBa POE value" . . 117 DISTINCTION BETWEEN HOLDER WITH- OUT VALUE AND HOLDER WITH NOTICE IIT BURTHEN OP PROOF IN THE CASE OP ALLEGED HOLDER WITHOUT VALUE . 118 , IN CASE OP ALLEGED HOLDER WITH NOTICE 118 PROOF OP NOTICE . . . .119 PLAINTIFF STANDING ON PRIOR TITLE .119 WHAT AMOUNtS TO NOTICE . .119 EXPLICIT NOTICE . . . .119 IMPLICIT NOTICE . . . .119 ABSTINEKOE PROM INQUIRY . 119 GROSS NEGLIGENCE NOT EQUIVALENT TO NOTICE 120 NOTICE TO AN AGENT . . . 120 GIFT OF A BILL OR NOTE . . . 120 NATURE OF, THE CONSIDERATION . 121 PRE-EXISTING DEBT . . . .121 FLUCTUATING BALANCE . . , 122 DEBT OF A THIRD PERSON - . .122 A JUDGMENT DEBT . . . .123 COMPROMISE OP A CLAIM . . . 123 MORAL OBLIGATION .... 123 CASES WHERE MORE THAN ONE CON- SIDERATION COMES IN QUESTION . 124 FAILURE OF CONSIDERATION . . 125 NOTICE OF ABSENCE OP CONSIDERA- TION 125 ACCOMMODATION BILL . . . 125 PARTIAL ABSENCE, OR FAILURE OF CON- SIDERATION 126 FRAUD 127 BILLS AND NOTES IN FRAUD OF THIRD PERSONS 128 WHERE A PARTY WHO HAS BEEN DE- FRAUDED MUST PAY A BILL OR NOTE, SIGNED BY HIM, WITHOUT CONSIDER- ATION 130 ILLEGAL CONSIDERATIONS AT COMMON LAW 131 IMMORAL 131 (e) 17 & 18 Vict. c. 125, s. 31. (/) Siordet v. Kuozinski, 17 C. B. 251 (84 E. C. L. R.}. But see Eames v. Smith, 1 Jnr. N. S. 1025. (g) Bradley v. Bardsley, 15 L. J., Exch. 115 ; 3 D. & L. 476 ; 14 M. & W. 873, s. c. ; see, however, Lazarus v. Cowie, 3 Q. B. 465 (43 B. C. L. R.) ; Tattersall v. Fearnley, 17 C. B. 368 (84 E. C. L. R.). OF THE CONSIDEEATION. 219 IN CONTBATENTION OP pnBLIC POLICY . 132 ILLEGAL OE VOID BY STATDTE . 133 ttSDEY .... . 134 GAMING .... . 134 HOBSE-RAOING . . 135 INNOCENT INDOHSEB . . 135 NEW SEOUEITY . . 136 STOCK-JOBBING . 136 OTHER CONSIDERATIONS ILLEGAL BY STATUTE . . . . . . 138 NOTICE OP PBAHDULENT OR ILLEGAL CONSIDERATION .... 139 ILLEGALITY OP CONSIDERATION WHERE JUDGMENT RECOVERED . . . 140 PART CONSIDERATION . . . 140 RENEWAL OP BILL GIVEN ON ILLEGAL CONSIDERATION .... 140 If a man seek to enforce a simple contract, he must, in plead- ing, aver that it was made on good consideration, and must sub- stantiate that allegation by proof. But to this rule bills and notes are an exception. It is never necessary to *aver considera- r-^^ ^ --. tion for any engagement on a bill or note, or to prove the existence of^j such consideration, unless a presumption against it be raised by the evidence of the adverse party, or unless it appear that injustice will be done to the defendant, or that the law will be violated, if the plaintiff recover. In the case of other simple contracts, the law presumes that there was no consideration till a consideration appear ; in the case of contracts on bills or notes, a consideration is presumed till the contrary appear, or at least appear probable.(a)(l) (a) To obtain the usual decree in a creditor's suit it is not sufficient for the plain- tiff to put in an acceptance of the testator proved as an exhibit. Qucere, whether any evidence should be given of the consideration. Keaton v. Lynch, 1 Y. & Col. N. S. 43T. And where an account is directed by a Court of Equity to be taken of dealings between an attorney and his client, it is not sufficient that the attorney produce bills and notes given by the client to him, he must prove the consideration. Jones V. Thomas, 2 Y. & Col. 498. r^ (1) A promissory note imports a consideration, and none need be proved unless it be impeached. Middlebury v. Case, 6 Verm. 165; Schoonmaker v. Roosa, IT Johns. 301 ; Jerome v. Whitney, 1 Ibid. 321 j Mlms v. Whiddon, 2 Bailey, 451 ; Horn V. Fulley, 6 N. Hamp. 511 ; Goshen Turnpike v. Hurtin, 9 Johns. 217 ; Camp v. Tompkins, 9 Conn, 545 ; McMahon v. Crochett, Minor, 362; Mandeville v. Welch, 5 Wheat. 211 ; Hunley v. Lang, 5 Porter, 154; Thompson v. Armstrong, 5 Alabama, 383; Coburn v. Odell, 10 Foster, 540; Mitchell v. Rome Railroad Co., 17 Georgia, 574 ; Smith v. Poor, 37 Maine, 462. The consideration of a promissory note is inquirable into between the original parties. Slade v. Halsted, 7 Cowen, 322 ; Pearson v. Pearson, 7 Johns. 26 ; Parish v. Stone, 14 Pick. 198 ; Barnet v. Offer- man, 7 Watts, 130 ; Geiger v. Cook, 3 Watts & Serg. 266 ; Haynes v. Thom, 3 Foster, 386. A promissory note, given for a void patent right, is without consideration, notwithstanding the vendor believed, at the time of the Sale, that the patent was valid. Dickinson v. Hall, 14 Pick. 217 ; Higgins v. Strong, 4 Blackf 182 ; Jollip v. Collins, 21 Missouri, 338 ; Lester v. Palmer, 4 Allen, 105. The maker of a note is 220 OE THE CONSIDBKATION. The defendant'is not permitted to put the plaintiflf on proof of the consideration which the plaintiff gave for the bill, unless the defendant can make out a primd facie case against him, by show- ing that the bill was obtained from the defendant, or from some intermediate party, by undue means, as by fraud, or force, (6) or that it was lost, or that it was originally infected with illegality.(e) It was formerly held, that the defendant could call on the plaintiff (J) As to a note obtained by duress of goods, see Kearns y. Durell, 6 C. B. 596 (60 B. C. li. R.). The distinction seems to be between a payment, or a transactiofl in the nature of payment, which is void for duress of goods, and a contract which cannot be so avoided. As to compulsion in the nature of duress of land, see Close V. Phipps, 7 M. & G. 586 (49 E. 0. L. E.). See also Atkinson v. Denby, 30 L. J., Bxch. 361 ; 7 N. & N. 934, s. 0. (c) Harvey v. Towers, 6 Exch. 656 ; Mather v. Lord Maidstone, 26 L. J., C. P; 58; 10. B., N. S. 273 (87 E. C. L. R.), 3. 0. But a wager which is not prohibited but only void under 8 & 9 Vict. c. 109, has been held not to be such an illegality of consideration as will change the burthen of proof. Fitch v. Jones, 5 B. & B. 238 (85 B. 0. L. R.). not precluded from showing want of consideration by the fact that the note was made to defraud creditors, the payee being conusant of that intent. Weaver v.- Pierce, 24 Pick. 141. This last case it will be difficult to reconcile with the dictates of sound policy, if it accords with the principles settled by the cases. That |)rinci- ple is, that in pari delicto potior est conditio defendentis. If a party can make out his case or his defence without showing the fraud, it cannot be objected to him by the other party who is also a particeps. Here the case of the plaintiff is made out by the production of the note. It is primS, facie evidence of consideration. The defendant shows want of consideration, and in so doing, certainly the actual reason why the note was given must appear. Suppose he succeeds in making out, that there was no consideration without disclosing the fraud, the plaintiff may contradict that evidence by showing that there was a consideration, to wit, an engagement to hold against creditors for the use of the maker, though that consideration was an intended fraud. It is a mistake to put such a case on the same footing as an honest accommodation note. It has a consideration sufScieut to sustain it as between the parties, though it is void as to third parties. See Murphey v. Hubert, 10 Penna. State Rep. 58 ; which was indeed the case of an executed grant, but the difference does not seem to be material. " Courts of justice do not sit to extricate a rogue from bis toils. To eoable a party to show a secret trust in the face of an absolute deed, the purpose must have been an honest one, else, by secret fraudulent device, a dishonest man would be sure never to lose, and he has the chance of gaining. He may accomplish his fraudulent design, and then he is sure to get back his property, or, what is the same thing, keep it for his family. This would be affording encour- agement to such frauds. On the contrary, it is the policy of common sense and common law, to environ a person with all possible perils, and to make it appear that honesty is the best policy." In an action on a note it is a good defence that it was given to plaintiff for goods conveyed ,for the purpose of defrauding his creditors. Hamilton v. Scull, 25 Missouri, 165, OP THE CONSIDERATION. 221 to prove consideration, by showing the bill to be an accommodation bill, or that the defendant received no value. (^) But it is now definitively settled, after *consideration by all the judges, that mere absence of consideration received by the de- ■- -* fendant will not entitle him to call on the plaintiff to prove the consideration which the plaintiff gave. " There is," says Lord Abinger, delivering the judgment of the Court of Exchequer, a "substantial distinction between bills given for accommodation only, and cases of fraud, inasmuch as in the former case it is to be presumed that money has been obtained upon the bill. If a man comes into Court without any suspicion of fraud, but only as the holder of an accommodation bill, it may fairly be presumed that he is a holder for value. The proof of its being an accommo- dation bill is no evidence of the want of consideration in the holder. If the defendant says, ' I lent my name to the drawer for the purpose of his raising money upon the bill, the probability is that money was obtained upon the bill.' Unless, therefore, the bill be connected with some fraud, and a suspicion of fraud be {d) See Heath t. Sansom, 2 B. & Ad. 291 (22 E. C. L. R.) ; Duncan T. Scott, 1 Camp. 100; Grant v. Vaughan, 3 Burr. 1516; King v. Milsom, 2 Camp. 5; Paterson , V. Hardacre, 4 Taunt. 114 ; Thomas v. Newton, 2 0. & P. 606 (12 B. 0. L. R.) ; De la Chaumette t. Bank of England, 9 B. & 0. 208 (17 B. 0. L. R.) ; Bassett v. Dod- gin, 10 Bing. 40 (25 E. C. L. R.) ; 3 M. & Scott, 417, s. 0. ; Simpson v. Clarke, 2 C, H. & E. 342 ; 1 Gale, 237, s. c. It was formerly necessary, in order to enable the defendant to put the plaintiff on proof of consideration, that the defendant should have given the plaintiff notice to prove consideration. Paterson v. Hardacre, 4 Taunt. 114; Bayley, 6th ed. 474, 500. It is now, however, settled, that notice to prove consideration is not necessary. Mann v. Lent, 1 M. & M. 240; 10 B. & C. 877 (21 E. C. L. R.), a. o. ; Heath v. Sansom, 2 B. & Ad. 291 (22 B. 0. L. B.) ; Bailey T. Bidwell, 13 M. & W. 75 ; and it is now seldom given. It was, however, before the new rules often prudent to give notice. " For it is," says Lord Tenterden, " matter of comment if no notice were given, or if it were not given at a reasonable time." Mann v. Lent, 1 M. & M. 240 ; 10 B. & C. 877 (21 E. C. L. R.), s. 0. It was formerly held, that where the consideration given by the plaintiff was disputed, and a notice to that effect had been given, the plaintiff must go into his whole case in the first instance, and could not reserve the proof of consideration as an answer to the defendant's case. Delauney v. Mitchell, 1 Stark. 439 (2 B. 0. L. R.); Hum- bert V. Ruding, Chitty, 9th ed. 651 ; Spooner v. Gardiner, R. & M., N. P. 0. 86; Best, C. J., in 0. P. But now, in all the Courts, the plaintiff is allowed to prove the handwriting and make out a primS, facie case, and afterwards, in answer to the defendant's .case, to prove consideration. R. & M. 255, n. If, however, he call wit- nesses to prove the consideration in the first instance, he will not be allowed, after the defendant's case has closed, to call other witnesses for the same purpose. See Browne v. Murray, R. & M. 254. 204 OF THE CONSIDERATION. raised from its being shown that something has been done with it of an illegal nature, as it has been clandestinely taken away, or has been lost or stolen (in which case the holder must show that he gave value for it), the onus probandi is cast upon the defendant.(e)(l) (e) Mills V. Barber; 1 M. &W. 425; 5 Dowl. 11; 2 Gale, 5, s. c, Percival v. Frampton, 2 0., M. & R. 180 ; 3 Dowl. 748 ; Whittaker v. Edmunds, 1 M. & R. 366 1 I Ad. & E. 638 (28 E. C. L. B.), s. c. ; Jacob v. Hungate, 1 M. & R. 445 ; Clarke t. Holmes, 2 F. & F. 15. It has been held by the Court of Exchequer that a mere ad- mission on record is not sufficient to put the plaintiff on proof that he is a holder for value, but that the presumption against his title must be raised by evidence before the jury. Edmonds v. Groves, 2 M. & W. 642; 6 Dowl. 775, s. C; and see Smith V. Martin, 9 M. & W. 304; Fearn v. Filica, 7 M. & G. 513 (49 E. C. L. R.). The Court of Queen's Bench, however, have held otherwise. Bingham v. Stanley, I G, & D. 237 ; 2 Q. B. 117 (42 B. C L. R ), s. 0. ; Robins v. Maidstone,,4 Q. B. 815 (45 E. C. L. B.). (1) If the indorser of a promissory note proves that it was Issued fraudulently by the maker, the bolder may be called on to show what consideration. he gave for it. Holme v. Karsper, 5 Binn. 469 ; Thompson v. Armstrong, 7 Alabama, 256 ; Woodhull V. Holmes, 10 Johns. 231; Knight v. Pugn, 4 Watts & Serg. 445; Jarden V. Davis, 5 Whart. 338 ; McOlintick v. Cummins, 2 McLean, 98 ; Bertrand v. Bark- man, 8 English, I DO ; Catlin v. Hansen, 1 Duer, 309 ; The Exchange Bank v. Mon- teith, 17 Barbour, S. C. Repi 171; Wilson v. Lasier, 11 Grattau, 477; Perrin v. Noyes, 39 Maine, 384 ; McKesson v. Stanberry, 3 Ohio (N. S.), 156 ; Wilson v. Lazier, II Grattan, 477 ; Ross v. Bedell, 5 Duer, 462 ; Bank v. Gibson, Ibid. 574; Bissell V. Morgan, 11 Cushing, 198 ; Gray v. The Bank of Kentucky, 5 Casey, 365 ; Hutch- inson V. Boggs, 4 Ibid. 294 ; Kelly v. Ford, 4 Iowa, 140 ; Whithed v. McAdams, 18 Texas, 551 ; Hillebrant v. Ashworth, Ibid. 307 ; Tucker v. Morrell, 1 Allen, 528; Clark V. Pease, 41 New Hampshire, 414; Merriam v. Granite Bank, 8 Gray, 254; Porter v. Gunnison, 2 Grant's Cases, 297 : Albietz v. Meljon, 1 Wright, 367 ; Devlin y. Clark, 31 Missouri, ,22 ; Sislermans v. Field, 9 Gray, 331 ; Hoffman v. Foster, 7 Wright, 137 ; Maples v. Browne, 11 Ibid, 458. The holder of a bank note proved to have been stolen is not bound to show how he came by the bill Wyer v. Dorchester Bank, 11 Cushing, 51. Duress is a ground to call on holder to prove value. Clark V. Peace, 41 New Hampshire, 414. Want of consideration as between the original par- ties will not cast upon the indorsee the onws of proving that he is a holder for value. Ellicott V. Martin, 6 Maryland, 509 ; Ross v. Bedell, 5 Duer, 462. The accommodation acceptor cannot object that the bill was put in circulation in fraud of an agreement between the payee and the drawer to which he was not a party. Winn v. WUkins, 35 Mississippi, 186. When there is full consideration for the acceptance of a bill, it is not material whether the bill is applied according to the original undertaking ' of the parties or to another purpose. Moore v. Ward, 1 Hilton, 337. The innocent holder of a negotiable note, the consideration of which has wholly failed, is not bound to prove that he paid value for it. Wilson v. Lazier, 11 Grattan, 477. Proof of fraud or want or failure of consideration obliges the holder to prove'jvalue. Ross V. Drinkard, 35 Alabama, 434. The party who- seeks to defend against) the holder by reason of some payment, set-off or equity against the payee or an inter- mediate holder must show that the bolder did not give value for it or raise a pre- - OF THE CONSIDERATION. 223 *We shall hereafter see that to an action against the ac- r* 1-17-1 commodating party it is no defence that the plaintiff, a transferee for value, had notice that the bill waa an accommoda- tion bill, and even took it after it was due.(/) If the defendant plead that the note was made on an illegal con- sideration, and that the plaintiff gave no value, and the plaintiff put the whole plea in issue, it will be sufiicient for the defendant to prove the illegality, which will cast on the plaintiff the burthen of proving consideration. (^) And in a case of fraud the defendant will equally cast the burthen of proving consideration on the plain- tiff, by proving so much of the plea as alleges that he, the defend- ant, was defrauded of the bill. (A) But the defendant is in all cases at liberty to show affirmatively, by his own witnesses, -absence or failure of consideration, where on the issues raised that would be a defence. (/) See post, and Chapter xi. (g) Bailey v. Bidwell, 13 M. & W. 73. And see Harvey v. Towers, 6 Exch. 656. (A) Ibid. ; but see Brown v. Philpot, 2 M. & Bob. 285, over-raled, however, by Smith T. Braine, 20 L. J., Q. B. 204 ; 16 C. B. 244 (71 B. 0. L. E.), s. o. ; Berry V. Alderman, 23 L. J., C. P. 35; 14 C. B. 95 (78 E. 0. L. E.), s. o. ; Hall v. Featherstone, 27 L. J., Exch. 309 ; 3 H. & N. 284, s. 0. sumption of that fact, sufficient to call upon him to explain how he came by it. Minell v. Eeed, 26 Alabama, 730. The burden of proof that a note was obtained bon& fide in the usual course of business is thrown on the plaintiff by very slight circumstances. Porter v. Gunnison, 2 Grant's Cases, 297. There is in all cases a presumption of bond fide in the holder. Gray v. The Bank of Kentucky, 5 Casey, 365 ; Palmer v. Goodwin, 5 California, 458 ; Cook v. Helms, 5 Wisconsin, 107 ; Hill V. Croft, 5 Casey, 186. Fraud or want of consideration is no defence for either the maker or accommodation indorser of a promissory note, as against a bond fide holder for value, to whose possession it came before maturity in the due course of trade, without notice ; but where a note was purchased under such circumstances at a dis- count, it will be held to have been negotiated in the way of trade only to the amount advanced by the purchaser. Holeman v. Hobson, 8 Humph. 127. Where a prom- issory note, indorsed by the payee for the accommodation of the maker, is negotiated by the latter in violation of an agreement between them, the holder cannot recover against such payee unless he received the note in good faith, for a valuable considera- tion and without notice of the arrangement. Small v. Smith, 1 Denio, 583. An in- dorser of a note for the accommodation of the maker and without consideration, and that fact being known to the indorsee when he took the bill, is notwithstanding liable to the indorsee ; and even if the indorsee takes the note after it is due. Brown v. Mott, 7 Johns. 361; Pierson v. Boyd, 2 Duer, 33. Contra, Tucker v. Jenckes, 5 Allen, 330. An accommodation acceptor is bound to pay it though he was known to be such by the holder when he received the bill. Cronin t. Kellogg, 20 Illinois, 11. 224 OP THE CONSIDERATION. The common phrase, " hond fide holder for value," is a very loose and ambiguous expression. It may either mean a holder for real value in contradistinction to a holder for apparent or pre- tended value, or it may mean a holder not only for real value, but also without notice of any fraud, illegality, or other vice, affecting the title to the bill. T,he former, that is to say, a holder for real value, with or without notice, is the cqrrect sense of the expres- sion. (i) For a man may really give part or the whole value for a bill, though he have full notice of the fraud or illegality of the original consideration. (A) He may think that the vice in the origi- nal concoction of the bill cannot be proved, or will not be set up as a defence, or he may rely on the solvency of other parties to the instrument. The ambiguity will be avoided, if we divide the subsequent holders r*1181 °^ negotiable instruments vitiated by *illegality, statutable invalidity,(Z) or fraud, into two classes; first, transferees with'out value, and secondly, transferees with notice. The distinction is important, because the bijrthen of proof in the two cases is different. As soon as it appears to the jury by the defendant's evidence that the bill was originally infected with fraud, invalidity or ille- gality, then it is plain that, the original holder's title being des- troyed, the title of every subsequent holder, which reposes on that foundation and no other, falls with it. Hence it appears that the plaintiff, the transferee, can then haveno title till he shows that he, or some other holder under whom he claims, has given value for the bill.(m) Therefore, where the question is thus raised, whether the transferee be a holder for value, it is not for the defendant to prove the absence of value, but for the plaintiff, the transferee,, to prove value given either by himself or by some one under whom he claims, (w) jPut it is otherwise when the question is raised whether the plain- (i) See Uther T. Rich, 10 Ad. & E. 784 (3V B. 0. L. R.). (A) See the observation of Alderson, B., ia Smith v. Martin, 9 M. & W. SOT. {I) e. ff., a gaming contract. (m) Smith v. Martin, 9 M. &. W. 304 ; Bailey v. Bidwell, 13 M. & W. 73 ; Harvey V. Towers, 6 Exch. 656. (b) Hogg v. Skeen, 34 L. J., 0. P. 155. OP THE CONSIDEBATION. 225 tiff, the transferee, had notice of the original illegality or fraud. For he having shown, or it being admitted or undisputed, that he or his predecessor in title gave value, he has a new and independ- ent title. And though possible, it is not likely,' that notice of the original fraud or illegality would be communicated to subsequent holders. If, therefore, the defendant seek to impeach this new title by alleging notice of the fraud or illegality, it is for him to prove it.(o) The averment, that the plaintiff had notice of the fraud or the illegality, is not only in form but in substance an affirmative allegation, and the maxim applies, " Ei incumbit probatio qui dicit."{p) Besides," until the recent alteration in the law, allowing the plaintiff to be examined as a witness on his own behalf, it might have been impossible for the plaintiff to prove the negative. Lastly, fraud, or, which is *the same thing, participation in a fraud, j-^.. ^ q-. is never to be presumed without proof, but, nevertheless, the proof need not be direct, it may be indirect and circumstan- tial. But absence of consideration moving from the plaintiff, proved by the defendant, or otherwise affirmatively established, may in some cases be primd facie evidence of notice to the plaintiff of fraud or illegality. Although notice to the plaintiff himself be established, that alone will not destroy his right to recover, if he can make a further in- dependent title under any intermediate holder who gave value, and had not notice. Notice of illegality or fraud is either particular or general. Particular or explicit notice is where the holder had notice of the particular facts avoiding the bill. But notice of the facts more or less in detail is not necessary in order to invalidate his title. It is sufficient if he had general notice. General or implicit notice is where the holder had notice that (o) Goodman v. Harvey, 4 Ad. & B. 870 (31 E. C. L. R.). See the observatioa of Parke, B., in Bailey v. Bidwell, 13 M. & W. 75 ; Oakeley t. Ooddeen, Guildiiall, M. T. 1861. So held at the second trial of this last case, in conformity with the- opinion of the majority of the Court of Common Pleas, who had previously granted a new trial on other grounds, 2 F. & F. 656. [p) So where the defendant alleges that the plaintiff took the bill after it was. due, it lies on the defendant to prove it. (See the Chapter on Frans/er.) 15 226 OF THE CONSIDERATION. there was some illegality or some fraud vitiating the hill, though he may not have heen apprised of its precise nature. Thus, if when he took the hill he were told in express terms that there was something wrong about it, without being told what the vice was, or if it can be collected by a jury from circumstances fairly warrant- ing such an inference, that he knew, or believed, or thought, that the bill was tainted with illegality or fraud, such a general or im- plicit notice will equally destroy his title.(g') A wilful and fraudulent abstinence from inquiry into the circum- stances,(r) where they afe known to be such as to invite inquiryj will (if a jury think that the abstinence from inquiry arose from a belief or suspicion that inquiry would disclose a vice in the hill) amount to general or implicit notice. (s)(l) *But mere negligence, however gross, not amounting to L -^ wilful and fraudulent blindness and abstinence from inquiry, will not of itself amount to notice, though it may be evidence of it.(o Where the holder in taking the bill employs an agent, though (g) Oakeley v. Ooddeen, Guildhall, C. P., November, 1861. (r) And it has even beensaid by the Court of Queen's Bench, that gross negli- gence may be evidence of frayiA, Goodman v. Harvey, 4 Ad. & E. 870 (31 E. C. L.R.). («) Oakeley t. Ooddeen, Ibid., and see Jones v. Smith, 1 Hare, 55 ; Ware v. Lord J)gmont, i De G., M. & G. Hi; Attorney-General t. Stephens, 6 De G., M. & 6. 111. ■ (t) Goodman v. Harvey, supra. (1) If there are circumstances which ought to put a holder on inquiry, and he •does make inquiry bond, fide and with due diligence, he will be protected. Belmont Bank v. Hoge, 7 Bosworth, 543. Where a partner in two firms drew and indorsed in the name of one of (hem a note payable to its own order, and then added the indorsement of the other firm, the fact that the note and indorsements are all in the handwriting of that partner, is not an indication of such a want of good faith, as to make it the duty of the bank discounting it, to inquire into bis authority for this act. Miller v. Consolidation Bank, 12 Wright, 514. A note by a partner in favor of his firm, and indorsed by him in the firm name, indicates nothing that affects a subsequent holder with notice of any fraud. Parker v. Burgess, 5 Rhode Island, .2'77. If the circumstances are such as would excite the suspicion of a prudent and careful man, the holder will be aflfected with notice. Roth v. Colvin, 32 Ter- imont, 125 ; Stcinhart v. Boker, 36 Barbour, 284. A party taking a bank note in .good faith, may recover upon it, although he be guilty of gross negligence in not .ascertaining that it had been fi-audulently put in circulation. Worcester Bank v. .Dorchester Bank, 10 Gushing, 488 ; Robinson v. Bank, 18 Georgia, 65. OF THE CONSIDERATION. 227 the principal be unaffected with notice to himself personally, yet notice to the agent so employed, whether explicit or implicit, is notice to his principal the holder.(M) Perhaps, however, the rule may be subject to this qualification, that the knowledge of the agent, in order to affect his principal, must either have been ac- quired by the agent in the same transaction, or at least so recently as that it may be presumed to remain in his memory; and it must be knowledge of a fact material to the transaction, and which it would be the duty of the agent to communicate to his principal. (a;) The effect of notice to an agent, commonly called Constructive noticp, is not to be extended. («/) But wherever the agent's conduct amounts to fraud, it is con- ceived that the innocent principal who takes the benefit of the agent's fraudulent act is civilly responsible for the agent's fraud. (is) It would seem, on general principles, that the payment of no bill of exchange, promissory note or check, given by the maker or acceptor to the payee, as a gift, inter vivos, can be enforced by action at the suit of the donee against the donor, (a)(1) Thus, where a bill of exchange was accepted by the defendant, as a pre- sent to the payee, who indorsed it to the plaintiff for a small sum advanced to him. Lord Ellenborough held, that the plaintiff was only entitled to recover so much as he had advanced on the bill.(6) The effect of a gift of a negotiable instrument, payable to bearer, or indorsed by the donor in blank, should seem on principle to *be this. As between the donor and the donee, the donor _ r-^.,j.-. cannot recover thi bill back or receive the amount from ■- -' («) Oakeley v. Ooddeen, Ibid. (i) WjlHe v. Pollen, 32 L. J., Ch. 782. (y) Ibid. (a) The rule of the civil law is conceived to be equally the rule of the English law, " Procuraioris scieniiam et dolum nocere debere domino, neque Pomponius dubitdt neque nos dubitamus." Dig. 14^ 4, 5. See Cornfoot r. Fowke, 6 M. & W. 373, and Udell V. Atherton, 30 L. J.,Bxch. 337, where the Court were equally divided. 7 H. & N. 172 ; Ejn v. M'DoWell, 14 Ir. C. 0. Eep. 814. (ffl) Milnes v. Dawson, 5 Bxch. 948. (6) Nash V. Brown, Ohitty, 10th ed. 54; and see Holiday t. Atkinson, 5 B. & C. 501 (11 E. C. L. R.) ; 8 D. & R. 163, s. 0. ; Easton v. Prachett, 4 Tyrwh. 472 ; 1 C, M. & R. '?98 ; 3 Dowl. 472 ; 1 Gale, 33, s. 0. in error; 2 0., M. & R. 542 ; 1 Gale, 250 ; but see Milnes v. Dawson, 5 Exch. 948. (1) A promissory note given by a parent to his cbildren during his lifetime with- out consideration, cannot be enforced after his death against his estate. Phelps v. Phelps, 28 Barbour, 121. 228 OF THE CONSIDERATION. prior parties,(c) but the donee himself cannot sue the donor upon it. As between the donee and the other prior parties to the bill, they are liable to him. If the bill be not transferable, or be pay- able to order and not indorsed, it is conceived that the efiFect of a gift of it is to vest the legal property in the paper and the bene- ficial interest in the money in the donee;(d) who, however, must recover from prior parties in the donor's name. The same general rules, as apply to the nature of the considera- tion for other simple contracts, are also applicable to the various contracts on a bill or note. It may suffice to observe here, for the sake of the unprofessional reader, that a consideration is, in gen- eral, either some detriment to the plaintiff, sustained for the sake or at the instance of the defendant, or some benefit to the defend- ant(e) moving from plaintiff. Natural affection is not a sufficient consideration to support a simple contract.(/) If a man give his acceptance to another, that will be a good consideration for a promise, or for another bill or acceptance, though such first acceptance is, after all, unpaid.(^) And, there- fore, cross acceptances for mutual accommodation are respectively considerations for each other.(A)(l) (c) Milnes v. Dawson, 5 Exch. 948. (d) See Barton v. Gainer, 21 L. J., Exch. 390 ; 3 H. & N. 38T, s. c, as to the effect of a gift of a specialty. ■ (c) It is not necessary that the consideration should move to the defendant per- sonally ; if it moTes to a third person by his desire or acquiescence, that is sufficient. Therefore, the debt of a third person is a good consideration to support a contract on a bill payable at a future day. Sowerby v. Butcher, 2 0. & M. 368 ; 5 Tyr. 320, s. c. ; vide post. Past gratuitous services and future services which the payee was under no contract to render, do not form a sufBcient consideration for a note. Hnlse V. Hnlse, IT C. B. Ill (84 E. C. L. R.). (/) Holiday v. Atkinson, 5 B. & C. 501 (11 E. C. L. R.). Iff) Rose V. Sims, 1 B. & Ad. 521 (20 E. C. L. R.). (A) Cowley v. Dunlop, 7 T. R. 565 ; Buckler v. Buttivant, 3 East, 72 ; Rose v. Sims, 1 B. & Ad. 521 (20 E. 0. L. R.). (1) Where cross notes are made and specifically exchanged by the.makers, each note is the proper debt of the maker thereof, and its holder is a purchaser for value. Dowe V. Schutt, 2 Denio, 621 ; Whittier v. Eager, 1 Allen, 499 ; Cobb v. Titus, 10 New York, 198; Williams v. Banks, 11 Maryland, 198; Dockway v. Dunn, 37 Maine, 442. A promise to forbear, for six months, to sue a third person, on a just cause of action, is a valid and sufficient consideration for a promissory onote. Jen- nison v. Stafford, 1 Gushing, 168. Forbearance to prosecute a legal claim and the compromise of a doubtful right, are both sufficient considerations to support a OF THE CONSIDERATION. 229 A pre-existing debt due to the holder of a negotiable instrument is a good consideration, and it should eeem is equivalent to a fresh advance. («') At all events where the bill or note is payable at a futui'e time, it. places the holder in the same situation as if he had made fresh advances on *the instrument; (A) for the remedy for the previous debt is suspended till maturity of the bill '- "-' or note.(Z)(l) (i) Story on Bills of Exchange, s. 192. (A) See Percival v. Frampton, 2 C, M. & R. 18'0 ; 3 Dowl. 748, s. c. ; Poster v. Pearson, 1 0., M. & R. 849 ; 5 Tyr. 255, s. o. ; but see De la Chaumette v. Bank of England, 9 B. & C. 208 (IT E. 0. L. R.); Vallance v. Siddel, 6 Ad. & B. 932 (33 E. C. L. R.); 2 N. & P. 78, s. c. ; Poirlerv. Morris, 1 E. & B. 103 (72 E. 0. L. R.) ; see In re Carew, 31 Beav. 39. (I) In America tlie judicial decisions on this important point vary in different States. But the Shpebme Court of the United States has gone the full length of holding that the taker of a note for a pre-existing debt has all the rights of a holder for a new consideration. Swift, t. Tyson, 16 Peters, 1. See the stale of the Ameri- can authorities, Byles on Bills, 3d American edition, pp. 95 to 98. promissory note. Austell v. Eice, 6 Georgia, 472. It Is no defence to a suit on the note, that such claim could not have been maintained at law. If no fraud or con- cealment was practised in obtaining the note ; but if the note was given in conse- quence of a fraudulent concealment of material facts, the payee cannot recover. Stewart v. Ahrenfeldt, 4 Denio, 189; Bullock v. Agburn, 13 Alabama, 346. In a suit upon a promissory note, made by the defendant, in consideration of the plain- tiff's forbearance to seize certain property on attachment against his debtor, the onus of proving that the debtor had, at the time, no interest in the property ; and that therefore the note was without consideration, is npon defendant. Rood v. Jones, 1 Dougl. 188. A release from a legal arrest is a good consideration for a note. Waterman v. Barratt, 4 Harrington, 311. A note given by a person law- fully imprisoned, in order to procure his discharge, is not invalid as being given under duress. Bates v. Butler, 46 Maine, 387. (1) According to the New York Courts, and those of some other States, one who takes a bill or note for a pre-existing debt, takes it subject to all the equities between the original parties. The leading case, and that by which the doctrine has become known, is Coddington v. Bay, 20 Johns. 637. 'i'he grounds of the determination may be briefly given, in the words of C. J. Spencer : " We are called upon to estab- lish a new principle, or rather to ascertain a principle from decisions in cases as nearly analogous as can be found. In the cases of Miller v. Race, 1 Burr. 452 ; Grant v. Vaughan, 3 Burr. 1516, and 1 Bl. Rep. 485, and Peacock v. Rhodes, Dougl. 633, the Court lay stress on the' fact, that the holder came by the notes for a full and valuable consideration, by giving money, or money and goods, for them, in the usual course of trade ; and I consider the real principle to be this, that the person passing the notes, from the fact of his having possession, was the ostensible owner of them, and that the holder having in the usual course of business, given credit to these appearances, which he was justified in doing, has been induced to part with his money or property bdn& fide ; and that, as between him and the real owner, there 230 OF THE CONSIDERATION. A fluctuating balance may form a consideration for a bill. (to) Where a banker's acceptances for his customer exceeded the cash (ot) Pease v. Hirst, 10 B. & 0. 122 (21 E. 0. L. R.) ; 5 M. & Ry. 89, s. c. ; Collea- ridge v. Farquharson, 1 Stark. 259 (2 E. C. L. R.) ; Richards t. Macey, 14 M. & W. 484 ; and for a bond, Henniker v. Wigg, 4 Q. B. 792 (45 B. C. L. R.) ; and see Cholmley t. Darley, 14 M. & W. 344. must be a loss on the one side or the other, the law will not divest him of fruits he has honestly acquired, without the possibility of remuneration. In other words, the equities of the parties being equal, the law leaves him in possession, who already has it. But how are the equities here? The respondent was clearly and justly entitled to the proceeds of the sale of the vessel, the notes in question ; his agents and trustees were guilty of a grossly fraudulent abuse of their trust, in attempting to deprive him of these notes. Admit that the appellants came to the possession of them without any knowledge of the fraud in passing the notes, bow is their situation altered, or what equities have they as against the respondent? If they have to account for these notes, their situation is exactly as it would have been, had the notes not have been transferred to them ; merely having had the good fortune to get the notes, without any new consideration or renouncing any lien, their equity to hold the notes, bears no comparison with that of the respondent to demand them. It was suggested that they might have had the benefit of some other security, had they not taken these notes ; but of this there is no proof or pos- sibility." See also Wardell v. Howell, 9 Wendell, 170 ; Rosa v. Brotherton, 10 Wendell, 85 I Briggs v. Rockwell, 11 Wendell, 504; Hart v. Palmer, 12 Wendell, 523; Root V. French, 13 Wendell, 570; Payne v. Cutler, Ibid. 605; Morton v. Rogers, 14 Wendell, 576 ; Dickerson v. Tillinghast, 4 Paige, 205 ; Fulton Bank v. Phoenix Bank, 1 Hall, 562; Manhattan Company v. Reynolds, 2 Hill, 140. It is confined, however, to the case where the note is taken as collateral security only, and not in payment or satisfaction of the pre-existing debt. Bank of "St. Alban's T. Gilliland, 23 Wendell, 31 ; Bank of Sandusky v..Scoville, 24 Wendell, 115 ; Mo- hawk Bank v. Corey, 1 Hill, 513 ; Norton v. Waite, 2 Appleton, 175 ; Riley v. Ander- son, 2 McClean, 589; Bertrand v. Barkman, 8 English, 150; Young v. Lee, 18 Barbour's S. C. Rep. 187. In Pennsylvania, though recognizing the general prin- ciple, that one to whom a negotiable instrument has been indorsed as collateral security for a pre-existing debt, who has given no other consideration for it, is not a holder for value: Petrie v. Clarke, 11 Serg. & Rawle, 377; Walker v. Geisse, 4 Wharton, 252 ; Depeau v. Waddington, 6 Ibid. 220 ; and the maker, it is said, may aver any ground of defence against the indorsee of such a note which would have been competent against the original payee; Kirkpatrick v. Muirhead, 16 Penna. State Rep. 117, yet the maker of an accommodation note cannot set up the want of consideration as a defence against it in the hands of a third person, though it be there as a collateral security merely. He who chooses to put himself in the front of a negotiable instrument for the benefit of his friend, must abide the consequence: Walker v. The Bank of Montgomery County, 12 Serg. & Rawle, 382 ; and has no more right to complain, if his friend accom,modates himself by pledging it for an old debt, than if he had used it in any other way. Appleton v. Donaldson, 3 Penna. State Rep. 381. Accommodation paper is the loan of the maker's credit without restriction as to the manner of its use. Lord v. Ocean Bank, 20 Penna. State Rep. OF THE CONSIDERATION. 231 balance in his hands, and accommodation acceptances were depos- ited by the customer with the banker as a collateral security, it 384) ; per Black 0. J. Where a note is taken in payment of a debt due and secured by indorsement of a third person, which last note is given up and discharged, it is taken "in a due course of trade." Nichol v. Bate, 10 Yerger, 429. One to whom a promissory note has been transferred before due, as collateral security for indorse- ments to be made by him, which are afterwards made, and who takes it without notice of a defence existing against it in the hands of the person from whom he received it, is entitled to be treated as a bond fide holder in the commercial sense. Such holder, however, cannot recover upon the note when it is not available as between the original parties, beyond what is due on the indorsements against which it was designed to secure him. Williams Ex. v. Smith, 2 Hill, 301. In Brush V. Williams, 11 Connecticut, 388, C, J. Williams, after a learned and elaborate review of all the authorities, maintains, that such a transfer, as security for a pre-existing debt, ought to invest the transferee with all the rights of a bond fide holder for value in the regular course of trade. In Pennsylvania, it has been held, as already stated, that although the taking of the note of a third person as collateral security for a pre-existing debt, without more, will not place the taker in the situation of a holder for value, so as to protect himself against the equities sub- sisting between the orifrinal parties to the note, yet it is otherwise, if there is ■& new and distinct consideration, as if time was given in consideration of obtaining the note as security for the debt. Depeau v. Waddington, 6 Wharton, 220. In the sub- sequent case of Appleton y. Donaldson, 3 Barr, 381, the same Court decided that ^ere a note is given by the maker to the payee for his accommodation, he may sell, discount, or pledge it for an antecedent debt ; the rule governing pledges of the property of others, not being applied to commercial paper of this character. Rogers, J. : "The case of Petrie v. Clark (11 Serg. & Rawle, 238), as to the general principle is affirmed in Depeau v. Waddington, with the expression of regret, that the negotiability of commercial paper should have been restrained, so as to prevent it from being pledged as a security for a debt. That it shall be still farther extended is now the question. Petrie v. Clark was the case of a misapplication of funds, , which the executor held as trustee for the benefit of creditors and legatees ; and for this reason, the latter were permitted to interpose a defence as against a person who in legal parlance had not paid value for it. The same equities were supposed to exist between them as the original parties. Bat that case differs from this in this essential particular, that in Petrie v. Clark the executor was not the owner of the note pledged j here the payee is the legal and equitable owner; the note is put into the hands of the payee by the maker, for the express purpose of using it in any manner which will best promote his interests." The Supreme Court of the United States, however, have gone the fall length of holding, that receiving a note in payment or as security for a pre-existing debt is according to the known usual course ef business, and entitles the taker to all the rights and benefits of a holder Bond fide and for valuable consideration. Swift v. Tyson, 16 Peters, 1. Story, J. : "It is for the benefit and convenience of the commercial world, to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances made upon the transfer thereof, but also in payment of and as security for pre-existing debts. The creditor is thereby enabled to realize or to secure his debt, and thus may safely give a pro- 232 OP THE CONSIDERATION. was held, that, whenever the acceptances exceeded the cash bal- ance, the bankers held the collateral bills for value. (w) Where (n) Bosanquet v. Dudman, 1 Stark. 1 ; and see Holland v. Bygrare, 1 E. & M. 271. longed credit, or forbear from taking any legal steps to enforce his rights. The debtor has also the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper cannot be applied in payment of or as security for pre-existing debts, without letting in all the equities between the original and antecedent parties, and the value and circula- tion of such securities mast be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts. What, indeed, upon such » doctrine, would become of that large class of cases where new notes are given by the same or by other parties, by way of renewal qr security to banks, in lieu of old securities discounted by them, which have arrived at maturity 1 Probably more than one-half of all bank transactions in our country as well as those of other countries are of this nature. The doctrine would strike a fatal blow at all discounts of negotiable securities for pre-existing debts." Besides the considerations thus forcibly presented as to the disastrous conse- quences of the doctrine upon commercial business generally, it may be observed, that when a note is transferred as collateral security, if forbearance is not actually stipulated for, it is most cpmmonly implied, or at least there follows a remission of that vigilance and activity, which might otherwise have secured satisfaction of the debt. 1 Leigh's Nisi Prius, 477, American Edition, note (1). See also Washington Bank v. Lewis, 22 Pickering, 24. The plaintiffs bad advanced some money and taken the note for that and as security for a prior debt ; it was held to be available in their hands for both amounts, as the money was advanced for the purpose of securing the prior debt. Since the foregoing note to the Fourth Edition was written, the subject has been much agitated in the American Courts, and the cases are numerous and conflicting. The decision of the Supreme Court of the United States in Swift v. Tyson has been followed in Bridgeport City Bank v. Welch, 29 Connecticut, 475 ; Bank of the Republic v. Carrington, 5 Rhode Island, 515 ; Davis v. Miller, 14 Grattan, 1 ; Bank V. Chambers, 11 Richardson (Law), 657; Payne v. Beaslcy, 8 California, 260 ; Gardner V. Gager, 1 Allen, 502; Robinson v. Smith, 14 California, 94; Naglee v. Lyman, Ibid. 450 ; Atkinson v. Brooks, 26 Vermont, 569. On the other side are Fenouille V. Hftmjlton, 35 Alabama, 319; King v. Doolittle, 1 Head, 77; Lee v. Smead, 1 Metcalfe (Kent.) 628; Alexander v. Springfield Bank, 2 Ibid. 534; Far- rington v. Frankfort Bank, 31 Barbour, 183 ; New York Co. v. De Wolf, 3 Bosworth, 86; Scott V. Ocean Bank, 23 New York, 289; Hutter v. Slower, 48 Maine, 163; Ryan v. Chew, 13 Iowa, 589; Jenkins v. Sehaub, 14 Wisconsin, 1. It seems how- ever to be agreed all round that even where the creditor is held to be a holder for value, he is so only to the extent necessary to protect his debt. Grant v. KidwcU, 30 Missouri, 455; Roche v. Ladd, 1 Allen, 436; Williams v; Cheney, 3 Gray, 215; Mayo V. Moore, 28 Illinois," 428 ; Gillen v. Huber, 4 Green, 155. And it is held in Courts which adhere to the rule that the indorsee as collateral is not a holder for value — that the payee of an accommodation note may pledge it for a pre-existing debt. • Such a note is a loan of the crpdit of the maker to the payee to be used for any legitimate purpose. De Long v. Fyfe, 1 Bosworth, 335 ; Bobbins v. Richardson, OP THE CONSIDERATION. 233 bills or notes are deposited as a security for the balance of an account current, the successive balances form a shifting considera- tion for the bill. Thus, where A. & Co., bankers in the country, being pressed by the plaintiffs B. & Co., bankers in town, to whom they are indebted, to send up any bills that they can procure, transmit for account an accommodation bill accepted by the defendant; when the bill becomes due, the balance is in favor of A. & Co., but the bill is not withdrawn, and afterwards the bal- ance between the houses turns considerably in favor of B & Co., the plaintiffs, and is so when A. & Co! become bankrupts, B. & Co. are entitled to recover against the defendant, the accommodation acceptor, (o) A subsisting debt due from a third person is a good considera- tion for a bill or note(p) payable at a future day; *and p^^n„-, so is a debt due from the defendant and a third pers- L -* (o) Atwood T. Crowdie, 1 Stark. 483 (2 B. C. L. R.) ; see Woodroffe v. Hayne, 1 Car. & Payne, 600 (12 B. C. L. R.). (jp) Popplewell V. Wilson, 1 Stra. 264; Coombs v. Ingram, 4 D. & R. ail ; Sow- erby Tj Butcher, 2 0. & M. 372 ; 4 Tyr. 320, s. c. ; Garnet v. Clarke, 11 Mod. 225 ; -Eidout V. Bristow, 1 0. & J. 231; 1 Tyr. 84, s. o. ; Wilders T. Stevens, 15 L. J., Exch. 108 ; 15 M. & W. 208, s. 0. ; and see Lechmere v. Fletcher, 1 C. & M. 623 ; Baker v. Walker, 14 M. & W. 465 ; Walton v. Mascall, 14 L. J., Exch. 54 ; 13 M. & W. 453, s. c; Cook t. Long, Car. & M. 510 (41 E. C. L. R.). At least, if the 2 Ibid. 248 ; Appleton T. Donaldson, 3 Barr, 386 ; Lord v. The Ocean Bank, 8 Har- ris, 384; Perry V. Armstrong, 39 New Hampshire, 583; Work v. Kase, 10 Casey, 138 ; Agawam Bank v. Strever, 18 New York, 502. That where the note is taken in payment of an antecedent debt, the holder takes it discharged of equities, is set- tled in McCaskey v. Sherman, 24 Conn. 605. New York Works v; Smith, 4 Duer, 362 ; Goiild v. Seger, 5 Ibid. 260 ; Scott T. Betts, Hill & Denio, 363 ; Dixon v. Dixon, 31 Vermont, 450 ; New York Co. v. De Wolf, 3 Bosworth, 86 ; Purchase t. Mattison, Ibid. 310 ; Emanuel t. White, 34 Mississippi, 56 ; Stevens v. Campbell, 13 Wisconsin, 375 ; Struthers v. Kendall, 5 Wright, 214 ; Youngs v. Lee, 18 Barbour, 187; Youngs v. Lee, 2 Kernan, 551. One who receives a note as security for an old debt, and thereupon surrenders securities previously held, holds the note free from all equities. Ayrault v. M'Queen, 32 Barbour, 305 ; Stettheirner v. Meyer, 33 Ibid. 215. When holder gives time on an antecedent debt, in consideration of the transfer to him, he is a bolder for value. Boyd v. Cummings, 17 New York, 101. A forbearance to sue and a surrender of other collaterals is a good consideration for a new transfer of collaterals. Goodman v. Simonds, 20 Howard (S. C), 343. When there is an exchange of notes between the indorser and payer, the holder is for valne. Bacon v. Holloway,- 2 B. D. Smith, 159. Where one receives a note as col- lateral sP;curity for money advanced at the time of the indorsement, or for any con- sideration then arising, he is a holder for value. Tarbell v. Sturterant, 26 Vermont, 513; Griswold v. Davis, 31 Ibid. .390; Housum v. Rogers, 4 Wright, 190. 234 OF THE CONSIDERATION. on.{q) If the debt of the third person is extinguished by the bill or note being taken in satisfaction, there is a good consideration, though the instrument be payable on demand. (1) A judgment debt is a good consideration for a note payable at a future day ; for it imports an agreement on the part of the judg- ment creditor to suspend proceedings on the judgment till the maturity of the note.(r) The compromise of a claim, though really unfounded and believed to be so by the party against whom it is made, may be a good consideration for a promissory note.(s)(2) A moral oblig9,tion is in general insufficient, but may^ in some cases, be a consideration for a bill or note, as where there once existed a legal liability, though it may have been barred by statute. (^) " Quisque renunciare potest juri pre se introducto." note be payable at a future day, for then the note amounts to an agreement to give time to the original debtor, and that indulgence to him is a consideration to the maker. Balfour t. Sea Fire and Life Insurance Company, 3 0. B., N. S. 300 (91 B. C. L. E.). Sema, if the original debtor is dead and has no representatiyie. Nelson V. Serle, 4 M. & W. 795 ; reversing Serle v. Waterworth, 4 M. & W. 9 ; 6 Dowl. 684, a. 0. But if the note be payable immediately; it is conceived that the pre-existing debt of a stranger could not be a consideration, unless it were taken in satisfaction, or unless credit had been given to the original debtor at the maker's request. Crofts V. Beale, 11 C. B. 172 (73 B. C. L. E.), aoc. (?) Hey wood v. Watson, 4 Bing. 496 (13 E. C. L. E.) ; 1 M. & P. 268, s. 0. \t) Baker h. Walker, 14 M. & W. 465. («) Cooke V. Wright, 40 L. J., Q. B. 321. {t) See the note to Wennall v. Adney, 3 B. & P. 249 ; Eastwood v. Kenyon, 11 Ad. & E. 438 (39 B. C. L. B.). (1) The debt of a third person to the payee is a sufficient consideration for the promise of the maker of a note. Brainard v. Capella, 3 1 Missouri, 428. A debt from the drawee to a third person is a good consideration for the acceptance, of a bill. Arnold v. Sprague, 34 Vermont, 402. C.'s note given to pay A.'s debt to B. is without consideration. Bingham v. Kimball, 17 Indiana, 396; Tousey v. Taw, 19 Ibid. 212. The consideration of a promissory note taken before due, cannot be inquired into in a suit between the bdnS, fide holder and maker, unless the note is void in its creation. Baker v. Arnold, 3 Oaines, 279 ; Vallett v. Parker, 6 Wend. 615 ; Woods v. Hynes, 1 Scam. 103. (2) A settlement of a doubtful claim is a good consideration for a note, unless there was fraudulent representation. Stephens v. Spiers, 25 Missouri, 386 ; Phelps V. Younger, 4 Indiana, 450,; Magee v. Badger, 30 Barbour, 246 ; Eussell v. Cook, 3 Hill, 504. OF THE CONSIDERATION. 235 Thus, for example, where a bankrupt, after his bankruptcy, gave a promissory note to the plaintiiF, one of his creditors, for part of his debt, it was held that the note was. given on a good considera- tion. (m) And a note given by a purchaser of an estate to the vendor for the purchase money, though the contract be void by the Statute of Frauds, is made on suflScient consideration. (a;)(l) ^Between immediate parties — that is between the drawer p^-j „,-, and acceptor, between the payee and drawer, between the payee and maker of a note, between the indorsee and indorser, the only consideration is that which moved from the plaintiff to the defendant, and the absence or failure of this is a good defence to an action. Thus, where a bill was drawn in the regular course of trade, and delivered to the payee's agent, before the considera- tion was given, and the payee's agent, who was to have paid the consideration, failed, the payee could not recover against the drawer.(y) But, between remote parties — for example, between payee and acceptor, between indorsee and acceptor, between indorsee (u) Trueman v. Fenton, Cowp. 544; and see Brix v. Braham, 1 Bing. 281 (8E. C. L. E.) ; 8 Moore, 261, s. 0. (a;) Jones v. Jones, 6 M. & W. 84. Perhaps this case may be rested on another ground. A majority of the Court of Exchequer have recently held that a bill given since the repeal of the usury laws to repay a debt with usurious interest contracted during the existence of the usury laws is binding. Flight v. Reed, 22 L J., Excli. 265; I H. k C. V08, s. c. (^) Puget de Bras v. Forbes, 1 Esp. Ill ; Astley v. Johnson, 29 L. J., Exch. 161 ; 5 H. & N. 137, s. c, where it was held that, a promise to give consideration in money at a specified future time having been broken, parties liable on the bill have a right to treat the payment of money as the consideration, and not the promise to pay it. Jeffries v. Austen, 1 Stra. 674 ; Jackson v. Warwick, 7 T. R. I'i'l. In Munroe v. Bordier, 19 L. J., C. P. 133 ; 8 0. B. 862 (65 E. C. L. R ), s. c, it seems to be held, that a payee who takes a bill bon&fide for value from a person to whom the drawer had intrusted the bill, but who parts with it against his instructions, acquires a title. Indeed, a payee, when he is a third person, seems to have the same title' as the first Indorsee of a bill payable to the drawer's own order. Poirier v. Morris, 2 E. 6 B.,89 (>5 E. C. L. R.). (1) See Nightingale v. Barney, 4 Greene, 106; Anderson v. Chicago Ins. Co., 21 Illinois, 601. An expectation, on the part of the payee, that the maker would marry her, is not a sufficient consideration for a promissory note. Raymond v. Sellick, 10 Conn. 480. A promissory note, the only consideration of which is the love and affection of the maker to the payee, will not create a valid obligation against the maker or his representatives, either at law or in equity. Smith v. Kittredge, 21 Vermont, 238. 236 OF THE CONSIDERATION. and remote indorser, two distinct considerations, at least, must come in question : first, that which the defendant received for his liability ; and, secondly, that which the plaintifi" gave for his title. An action between remote parties will not fail ^unless there be absence or failure of both these oonsiderations.(2) And if any intermediate holder between the defendant and the plaintiff give value for the bill, that intervening consideration will sustain the plaintiff's title. (a)(1) Thus it is no defence to an action by an indorsee for value against an acceptor, that the acceptor received no value. (6) Nor on the other hand, that though the acceptor received value, the indorsee gave none. On the same principle, if the acceptance were without consideration, and the plaintiff, the indorsee, knew it, he, as a general rule, can recover no more than he gave for the bill ;(c) for, suppose the bill to be for lOOZ. and that the indorsee gave 60Z. for it, if he could recover 1001. from the acceptor, the acceptor having recovered that sum of the drawer, the drawer might recover r*12'i1 *^^^^ ^^'- ^^0^ the indorsee ^ money received to the drawer's use.(cZ)(2) (2) Robinson v. Ecynolds, 2 Q. B. me (42 E.. C. L. R.) ; Thiedemana t. Gold- schmidt, 1 De G., F. & J. 4. (a) Hunter v. Wilson, 19 L. J., Exch. 8 ; 4 Exch. 489, s. 0. (J) Collins T. Martin, I Bos. & Pal. 651. (c) Wififen v. Roberts, 1 Esp. 261. {d) Jones v. Hibbert, 2' Stark. 304 (3 E. C. L. R.). These observations do not apply to an accommodation acceptance, properly so called. (1) Boyd V. McCann, 10 Maryland, 118 ; HoweU v. Crane, 12 Louisiana Annual, 126; Watson V. Flanagan, 14 Texas, 354. (2) The consideration of a promissory note taken before due, cannot be inquired into in a suit between the bon& fide holder and maker, unless the note is void in its creation. Baker v. Arnold, 3 Caines, 2'i'9 ; Vallett v. Parker, 6 Wend. 615 ; Woods T. Hynes, 1 Scam. 103. The indorsee who takes the note after it is due, takes it subject to all the equities between the original parties arising from the note, includ- ing want or failure of consideration. Sylvester v. Crapo, 15 Pick. 92; Thompson V. Hale, 6 Pick. 259; Ayer v. Hutchins, 4 Mass.. 370; Wilson v. Holmes, 5 Ibid. 543 ; Rice v. Goddard, 14 Pick. 293 ; Barnet v. Offerman, 1 Watts, 130. In a suit in the name of the payee of a note not negotiable, for the use of an innocent indorsee against the maker, the defendant may|et up want of consideration. Long y. Long, 1 Morris, 43. When a promissory note has been assigned but not indorsed, proof by the maker that there was no consideration, or that the note was fraudulently obtained by the payee, is admissible. Calder v. Billington, 15 Maine, 398. A note absolutely void, as for an illegal consideration, is void in the hands of an innocent indorsee for a valuable consideration without notice. Lucas v. Waul, 12 Smedes & Marsh. 157. A negotiable note, given for a gambling debt, is void, even in the , OF THE CONSIDERATION. 237 The entire failure of the consideration has the same effect as its original and total absence. A. appointed B. his executor and gave him a promissory note, payable on demand, for lOOZ., in con- sideration of the trouble he would have in the office of executor after A.'s death. B., however, died first; but his executors brought an action on the note against A. It was held, that, as the con- sideration for the note had totally failed, the action was not main- tainable, (e) It is no defence to an action by an indorsee for value against an accommodation acceptor, who has received no consideration, that, at the time the plaintifi" took the bill, he knew the defendant had received no value ;(/) unless, indeed, the plaintiff took it of a per- son who held it for a particular purpose, and was therefore guilty of a breach of duty in transferring it to the plaintifiF, and the plain- tiff, at the time of taking it, was cognizant of the circumstances. (^) An accommodation bin is a bill to which the accommodating party, be he acceptor, drawer, or indorser, has put his name, with- out consideration(/i) for the purpose of benefiting or accommodating some other party, who desires to raise money on it and is to provide for the bill when due.(i) (e) Solly V. Hinde, 2 C. & M. 516 ; 6 C. & P. 316, a. v. ; Wells v. Hopkins, 5 M. & W. T. (/) Smith T. Knox, 3 Esp. 47 j Charles v. Marsden, 1 Taunt. 224 ; Fentum v. Pococke, 5 Tannt. 193 ; 1 Marsh, 14, s. c. ; Bank of Ireland T. Beresford, 6 Dow. 237 ; and see Poplewell v. Wilson, 1 Stra. 264, and Wiffen T. Roberts, 1 Esp. 261 ; and see Jewell v. Parr, 16 0. B. 684 (81 E. C. L. R.). {g) If a message be sent comprising facts, the communication of which would Impugn the title to a bill, there is no presumption that the message was delivered : its delivery must be proved : Middleton v. Earned, 4 Exch. 241. See the Chapter on IVans/er. (A) As to his remedy far the costs of an action brought against him, see post. Chapter xxx'a. («') Bills drawn specifically, the one against the other, for the same amount, are not in this sense accommodation bills. See the Chapter on Bankruptcy, Burden hands of a bon& fide holder for value. Unger t. Boas, 13 Penna. State Rep. 601. The maker of a negotiable note, appearing on the face of it to have been given in consideration of the transfer of a patent right, which afterwards proved to be of no value, cannot set up this want of consideration as a defence to an action by a oona fide indorsee. Goddard v. Lyman, 14 Pick. 268. It seems that in Mississippi, the indorsee of a note in all cases takes it subject to the equities existing against it in the hands of the assignor. Regan v. Gray, 27 Miss. 645. 238 OF THE CONSIDERATION. A party wlio procures another to lend his acceptance, thereby r*1 2R1 ®'^g^g®® either himself to take up the bill, or else *within a reasonable time before the bill becomes due to provide the accommodation acceptor with funds for so doing, or, lastly, to indemnify the accommodaition acceptor against the consequences of non-payment,(A) And, therefore, where the drawer of a bill, accepted for his accommodation, a week before the bill became due, handed over bank notes to the accommodation acceptor, it was held that he could not himself revoke this payment, and therefore that his bankruptcy before the bill became due did not amount to a revocation. (Z)(l) T. Benton, 9 Q. B. 843 (58 E. C. L. R.) ; J6 L. J., Q. B. 353, s. c. ; see also King v. Phillips, 12 M. & W. 705. (i) Reynolds v. Doyle, 1 M. & G. 153 ; 2 Scott, N. R. 45, s. o. (2) Yates v. Hoppe, 9 C. B. 541 (67 E. 0. L. R.). Had the payment been a fraudu- lent preference, it would of course have been otherwise. (1) If the maker gets an indorsed note discounted, the transactioa on its face shows that it was indorsed for the accommodation of the maker. Wallace v. Branch Bank, 1 Alabama, 565. If a prior indorser offer a note to be discounted on his own account, the transaction imports upon its face that the subsequent indorsement was made for the accommodation of the prior indorser. Mauldin v. Branch Bank, 2 Alabama, 502; Noble v. Walker, 32. Ibid. 456. An accommodation indorsement need not be exclusively for the benefit of the indorsee, but may be for the mutual accommodation of the drawer and the indorsee. Farrar v. Gregg, 1 Richardson, 378. Indorsers of, promissory notes, indorsed for the use and accommodation of the maker, are cosureties, and the last indorser cannot recover more than a con- tributive share against a previous indorser. Douglas v. Waddle, 1 Hamm. 413. Contra, Youngs v. Ball, 9 Watts, 139. The last indorser of a note, who pays the amount to the holder, may recover it against any prior indorser, whether the note was indorsed by all for the accommodation of the maker or not. Ibid. ; Williams V. Basson, 11 Ohio, 62 ; Cathcart v. Gibson, 1 Richardson, 10. See Hunt v. Arm- strong, 5 B. Monroe, 399 | Stiles v. Eastman, 1 Kelly, 205 ; Bank of the U. S. v. Beime, 1 Grattan, ,234 ; Sherrod v. Rhodes, 5 Alabama, 683. A. procured the dis- " count of two notes, one indorsed by B., and the other by B. and C, for the accom- modation of A. When they fell due, A. procured a renewal by giving one note for the amount indorsed by B. & C, but the order of their indorsements being changed : held, that it was for the jury to determine whether or not such change in the order was intended to change their liabilities. Allison v. Purdy, 6 Barr, 501. If one of two joint payees and indorsers of a note discounted for the accommodation of the maker die before the note falls due, his representatives are not liable to the holder for any part of the amount. Kennedy v. Carpenter, 2 Whart. 344. An accommo- dation indorser of a note to be discounted in bank may, before the note is dis- counted, recede from his agreement and direct the bank not to receive the note ; and such indorser will not be liable to a third person who takes the note with notice. Dogan v. Dubois, 2 Richardson, Eq. Rep. 85. OF THE CONSIDERATION. 239 The effect of indorsing or otherwise transferrin^f an overdue accommodation bill, will be further considered hereafter in the chapter on Transfer. Where a defendant can insist on a total want of consideration as a defence, he may also set up its partial absence or failure, as an answer pro tanto. Thus in an action by the drawer of a bill for 19Z. 5s., payable to his own order, against the acceptor, it appear- ing that the bill was accepted for value as to 10^., and as an accom- modation to the plaintiff as to the residue. Lord Ellenborough held, " that although with respect to third persons the amount of the bill might be Vdl. 5s., yet as between these parties it was an acceptance to the amount of 101. only."(»?i) But the money as to which the consideration fails must be of a 'specific ascertained amount, for the jury cannot, in an action on a bill or note, assess by way of set-off the damages arising from a breach of contract, but the defendant must be left to his cross action. Drawer against the acceptor of a bill: the plaintiff agreed to let a house to the defendant for twenty-one years, and in con- sideration of 500?., to be paid by three bills, to be drawn by the plaintiff and accepted by the defendant, agreed to execute a lease for that term. The bill in question, and two others, were drawn and accepted accordingly, and the defendant was immediately let into possession; but the plaintiff refused to execute the lease. It was argued, therefore, that the consideration had failed. But Lord Ellenborough, and afterwards the Court, on a motion for a new trial, , held, that it was no defence to the action, that the defendant was bound to pay the bills, and might have his remedy on the agreement for non-execution of the *lease.(w) r^ic-ioY-i Where the consideration for an acceptance was goods sold, and the vendor forcibly retook possession, the consideration was held not to have failed.(o) So, where a bill or note is given for goods sold, or work done, the price, amount, and quality of the (m) Darnell v. Williams, 2 Stark. 166 (3 E. C. L. R.) ; Barber t. Backhouse, Peake, 61 ; Clarke v. Lazarus, 2 M. & G. 167 ; 2 Scott, N. R. 391, s. c. (n) Moggeridge v. Jones, 14 Bast, 486; 3 Camp. 38, s. c; Spiller t. Westlake, 2 B. & Ad. 155 (22 B. C. L. R.) ; Mann v. Lent, 10 B. & 0. 877 (21 E. C. L. R.) ; Grant V. "Welchman, 1 6 Bast, 207 ; Cutf v. Browne, 5 Price, 297. (o) Stepliens v. Wilkinson, 2 B. & Ad. 320 (22 B. 0. L. R.) ; see also Jones v. Jones, 6 M. & W. 84, and Lonas v. Bradshaw, 19 L. J., 0. P. 273 ; 9 0. B, 620 (67 B. 0. L. R.), s. c. 240 OF THE CONSIDERATION. goods, or work, cannot be disputed in an action on the bill.(p) So, where work had been done by the plaintiff for the defendant, fpr which the plaintiff charged, the defendiant 63Z., and the defendant paid the plaintiff 4Sl. in money, and gave him a bill for the remain- ing 20Z. ; it is no defence to an action by the plaintiff against the defendant on the bill that the work done was not worth 43 ?.(§') And, where the amount for which the consideration fails is un- liquidated, a bill in equity for an injunction to restrain an action on the bill of exchange and for an account cannot be main- tained. (r)(l) (p) Morgan v. Richardson, 7 East, 482, n. ; 3 Smith, 487, s. c. j Tye v. Gwynne, 2 Camp. 346 ; Obbard v. Betham, 1 M. & M. 483 ; Warwick v. Nairn, 10 Exch. 762. (S) Tricky t. Lame, 6 M. & W. 278. (r) Glennie v. Imrie, 3 Y. & C. 436. (1) The failure of consideration, either in whole or in part, may be set up as a defence between the original parties, or any other than a bond fide holder without nqtice. Tillotson v. Grapes, 4 N. Hamp. 444 ; Earl v. Page, 6 N. Hamp. 447 ; Pryor V. Coulter, 1 Bailey, 517 ; Cook v. Mix, 11 Conn. 432 ; Denniston v. Bacon, 10 Johns. 198; Amherst Academy v. Cowls, 6 Pick. 427; Payne v. Cutler, 13 Wend. 605; Barns v. Pinch, 2 Root, 53 ; Spalding v. Vandercook, 2 Wend. 431 ; Burton v. Stew- art, 3 Ibid. 236 ; Rogers t. McKnight, 4, J. J. Marsh. 154; Johnson v. Titus, 2 Hill, 606; Lattin V. Vail, 17 Wend. 188; Scudder v. Andrews, 2 McLean, 464; Washburn V. Picott, 3 Dev. 390 ; Campbell v. Brown, 6 How. Miss. 106 ; Jenness v. Parker, 24 Maine, 289 ; Stone v. Fowle, 22 Pick. 166 ; Ferguson v. Oliver, 8 Smedes & Marsh. 232 ; Beers v. Williams, 16 Illinois, 69; Wise v. Neal, 39 Maine, 492. When the consideration for accepting a bill was timber which the payee directed the drawer to cut and deliver to the acceptor, and the payee had no property in the timber which never came to the hands of the acceptor, it was held that the acceptor was not liable in an action by the payee. Walker v. Squires, Hiil & Denio, 23. Failure of consideration, is not a good defence against a bond fide holder without notice. M'Caskill v. Ballard, 8 Richardson, 47u ; Harlow v. Boswell, 15 Illinois, 56; Black V. Mitchell, 14 Indiana, 397. The fact that the holder of a note took it with a know- ledge of the consideration for which the note was given, but without knowledge of any failure therein, is not enough to charge such holder with notice of a failure in such consideration. Davis v. McCready, 4 E. D. Smith, 565. That a partial failure of consideration is no defence, see Jordan v. Jordan, Dud- ley, Geo. 181; Hinton V. Scott, Ibid. 245; Scudder v. Andrews, 2 McLean, 464; Washburn v. Picott, 3 Dev. 390 ; Kernodle v. Hunt, 4 Blackf. 57 ; Weiitworlh v. Goodwin, 27 Maine, 150; Chase v. Weston, 12 N. Hamp. 413; Riddle v. Gage, 37 N. Hamp. 519 ; Loring v. Otis, 7 Gray, 563 ; Thompson v. Mansfield, 43 Maine, 490 ; Hassam v. Dampier, 2 Williams, 32 ; Stookey v. Hughes, 18 Illinois, 55 ; Martin v. Foreman, 18 Arkansas, 249; Thompson v. Crntcher, 26 Missouri, 319; Richardson V. Sanborn, 33 Vermont, 75 ; Harrington v. Lee, 33 Vermont, 249; Reese v. Gordon, 19 California, 147 ; Walters v. Armstrong, 5 Minnesota, 448 ; Cragiu v. Fowler, 34 Vermont, 326; contra, M'Henry v. Yokum; 27 Illinois, 160; Moore v. Lan- ham, 3 Hill (South Carolina), 299 ; Sumpter v. Welsh, 1 Brevard, 539 ; Smith v. pB THE CONSIDERATION. 241 Fraud is an artifice to deceive and injure. Fraud avoids every contract and every act. " Fraud," says the Lord Chief Baron, " cuts down everything. The law sets itself against fraud to the extent of breaking through almost every rule, sacrificing every maxim, getting rid of every ground of opposition. The law so abhors. fraud that it will not allow technical difiiculties of any kind to interfere to prevent the success of justice and. truth, "(s) If the consideration for a bill can be shown to be vitiated by fraud, of which the defendant was ignorant when he gave the bill, and, if the defendant has derived no benefit from the contract, but has elected to repudiate it as soon as he knew of the fraud, he has a defence to an action on the bill at the suit of the party to whom he gave it.(t) Defendant gave plaintiflF a promissory note for some pictures. It was proposed to prove, that the sum for which the note was given infinitely exceeded the value of the pictures. Lord EUenborough — " I will not admit the evidence for the '•'pur- pose of reducing the damages, by showing that the pictures •- -^ were of an inferior value ; but, if you can, by the inadequacy of the value, and other circumstances, proVe fraud on the part of the plaintiff, so as to show that there was no contract at all, the evi- dence will be admissible : if it fall short of that, it will be unavail- ing, "(m) So, if a horse is warranted, a check is given, and the horse turn out unsound, the breach of the warranty is no answer to an action on the check ; but if the seller knew of the unsoundness, there is fraud ; there was no contract, and no action lies on the check, at the suit of the seller,(2;) if the horse be tendered back. So, if by fraudulent representations a man induces another to give (a) Eogera v. Hadley, 32 L. J., Exch. 248. {t) Mills T. Oddy, 2 0., M. & R. 103. (m) Solomon v. Turner, 1 Stark. 51 (2 E. 0. L. R.). But it is conceived that this ruling is wrong if the defendant kept the picture. (x) Lewis V. Cosgrave, 2 Taunt. 2. Ackerman, 5 Blackf. 541; Purkett v. Gregory, 2 Scam. 44; Barr v. Baker, 9 Mis- souri, 850 ; Griffey v. Payne, 1 Morris, 68 ; Hammet v. Emerson, 27 Maine, 308 ; Coburn v. Ware, 30 Maine, 202 ; Andrews t. Wheaton, 23 Conn. H2 ; Tompkins v. Tigner, 17 Georgia, 103. In an action on a bill or note, the defendant cannot show a partial failure of consideration to reduce the damages, if the quantum to be de- ducted is of an uncertain and unliquidated amount, and there has been no attempt to repudiate the contract or restore the consideration. Pulsifer v. Hotchkiss, 12 Conn. 234 ; Drew v. Towle, 7 Foster, 412. 16 242 OF THE CONSIDERATION. him for a business more than it is worth, and tale a bill in pay- ment, he cannot recover on the bill.(«/) So where the plaintiff had distrained goods of the defendant on the premises of the plaintiff's tenant, and the defendant, to get rid of the distress, accepted the bill in question, it appearing that there was no rent due at the time of the distress. Best, J., left it to the jury to say, whether the • plaintiff had not falsely represented to the defendant that the rent was due, in order to induce him to give his acceptance, and that, if so, the acceptance was fraudulently obtained, and the defendant was entitled to a verdict.(s)(l) But where the defendant insists on the fraud as a defence, he must altogether repudiate the contract, and retain no benefit under it.(a) Equally unavailing is the instrument, if it were given in fraud of third persons. An insolvent proposed to compound with his creditors, but the plaintiffs, being creditors, refused to execute the deed of composi- tion, unless the insolvent gave them a promissory note for the residue of his debt to them. He accordingly did so, without the knowledge of the other creditors, and the plaintiffs and the rest of the creditors then signed the composition deed. The note was held void, as a fraud on the other creditors. (6) (2) But if the insolvent (j/) Archer v. Bamford, 3 Stark. 175 (3 B. C. L. K.). (s) Grew v. Bevan, 3 Stark. 134 (3 B. 0. L. R.). (a) Archer v. Bamford, supra ; and see Clarke v. Dixon, E., B. & E. 148 (96 E. C. L. R.). As to Pleading, see the Chapter on that subject. Yet the Court of Ex- chequer have held, that a plea of fraud to an action for goods sold and delivered is good. Lawton v. Elinore, 27 L. J., Exch. 141. For goods may be sold and deli- vered, e. ff., under a written contract, and yet not accepted. (i) Cockshott V. Bennett, 2. T. B. 763 ; Knight v. Hunt, 5 Bing. 432 (15 B. C. L. B.); 3 M. & P. 18, s. c. ; Bryant v. Christie, 1 Stark. 329 (2 B. C. L. R.); and see Took T. Tuck, 4 Bing. 224 (13 E. C. L. R ) | 13 Moore, 435. (1) If a creditor for the purpose of obtaining his debtor's note for a debt already due, falsely and fraudulently promises to supply him with goods for a specified future time, this constitutes no defence to an action on the note. Orerdeer v. Wiley, 30 Alabama, 709. (2) A note given by a bankrupt to a creditor for his consent to the bankrupt's discharge, is void from illegality of consideration, though given after his discharge. Eice V. Maxwell, 13 Sfliedes and Marsh. 289. In case of a composition with credi- tors, the taking of the note of the debtor for the balance not covered by the compo- sition notes, is such a fraud as renders Void, not only the notes so taken, but the composition notes themselves. Dougherty v. Savage, 28 Conn. 246. OF THE CONSIDERATION. 243 pay the *bill or note when due to the holder, he cannot recover back from the creditor the money so paid.(c) And •- -■ the note is equally void, if given, not by the insolvent, but by a third person. So, the note, being given with a fraudulent inten- tion, would have been void, though the composition had never been effected. (c?) And any better security than the other creditoi's have, though for the same amount, if taken without their knowledge, is* void as a fraud on them. "The real question is," says Le Blanc, J., " whether one creditoF be put in a better situation than he stipulated for with the other creditors, and it is immaterial whether that be done by receiving more money, or that which is meant to procure him more money, namely, a better security for the same sum. "(e) In these cases the creditor and the insolvent, though " participes criminis," are not "in pari delicto." It is oppression on one side and submission on the other. "It. can never," says Lord Ellen- borough, be "par delictum when one holds the rod and the other bows to it."(/) A compounding creditor cannot split his demand, and compound for part, and afterwards sue for the residue, unless he acquaint the other creditors with his proceeding. Therefore, where the plaintiff held two bills, drawn by the insolvent, both due, one for iOOl., the other for 156?. 19s. 10c?. ; and expecting that the acceptor would pay the first, inserted in the schedule attamed to the composition deed the amount of the second only as his debt, it was decided that he could not afterwards sue the insolvent on the first bill.(5') So, if the agreement of composition contain a ~ stipulation that all securities shall be given up, if the compounding creditor holds bills drawn by the defendant and accepted by a third person, and he afterwards receives the amount of these bills from the acceptor, (c) Wilson V. Ray, 10 Ad. & E. 82 (37 E. C. L. R.) ; 2 Per. & Day. 2&3, s. o., OTer- ruling Turner v. Hoole, 1 D. & R., N. P. C. 27. {d) Wells V. Girling, 1 B. & B. 447 (5 E. C. L. R.) ; 3 Moore, 79, s. 0. (e) Leicester t. Rose, 4 East, 372, overruling Feise v. Randall, 6 T. R. 146. (/) Smith V. Cuff, 6 M. & S. 160 ; Smith v. Bromley, 2 Doug. 695,, 697 ; Atkinson V. Denby, 30 L. J., Exch. 361 ; 31 L. J. 362, s. o. in error. The money paid at the time may be recovered back. But if a bill be given afterwards and voluntarily paid, it has been held that the money cannot be recovered back. Wilson v. Ray, 10 Ad. & E. 82 (37 E. C. L. R.). {g) Britten v. Hughes, 5 Bing. 460 (15 E. C. L. R.) ; 3 M. & P. 77,. s. u., overruling, perhaps, Payler v. Homersham, 4 M. & S'el. 423 ; and see Holmer v. Viner, 1 Esp. 132 : Cecil v. Plaistow, 1 Anst. 202. 244 OF THE CONSIDERATION. r*mm ^® ™i^st refund the money to the *insolvent.(A) But he may retain money so received, if the agreement of com- position contained no stipulation for the surrender of secnrities.(«) A creditor who holds a bill, and accepts a composition, impliedly engages that the bill is in his own hands. If, therefore, an indorsee of the bill afterwards compels the compounding debtor to pay the bill, the latter may recover the amount from the compounding creditor as money paid to his use,(A) unless the debtor made the payment voluntarily to a holder who 'was a mere agent of the original creditor, and known by the debtor to be so.(Z) If the creditors of an insolvent compound with him, and take notes of hand for the amounts of their respective compositions, and one creditor, in addition to his note of hand, fraudulently and clandes- tinely take a further security, his dealing with the insolvent is one entire transaction, and he cannot recover, even on the promissory note.(»n) So, if a man becomes surety for another for the price of goods — as, for example, by joining him in a joint and several note, and the party to whom the surety is responsible conceals from him a stipu- lation for an additional sum, which it is secretly- agreed between himself and- the principal that the principal shall pay in liquidation of an old debt, that is a fraud on the surety, and releases him from his engagement, (w) ~~~ But where a fraud has been practiced on the maker or acceptor; an indorsee for value without ' notice may, nevertheless, recover -against him.(l) Thus we have seen, that though a partner fraudu- v. Burnham, 11 Foster, 426; Johnson v. Meeker, 1 Wisconsin, 436; Canettv. Thomp- son, 16 B. Monroe, 572. When a note issued by a partner, in fraud of their firm, is bad in the hands of a holder. See Haldeman v. Bank of Middletown, 4 Casey, 440; Collier v. Cross, 20 Georgia, 1 ; Rich v. Davis, 4 California, 22 ; 6 California, 141 ; Gray v. Ward, 18 Illinois, 32. A note void as against public policy is good in the hands of an innocent holder, whether absolutely or as collateral. Meadows v. SxcA, 22 Georgia, 246; Thome v. Yontz, 4 California, 321. The bearer of a note OF THE CONSIDERATION. 245 lently use the names of his copartners, they will all be bound to pay an innocent indorsee. (o) So, in an action by the indorsee against the maker of a note thirteen years old, the defendant obtained a rule nisi to set aside a judgment by default, on an affi- davit that he the defendant was swindled out of the note. An affi- davit being made on the other side, that the plaintiff took the note bond fide, and gave a valuable consideration for it, the Court held, that, however improperly it might have been obtained, a third person, who took it fairly and gave a consideration *for it, was r^iqi-i entitled to recover, and they discharged the rule.(p) A., by false representations, induced B. to sign his name to a blank Stamped paper, which A. afterwards secretly filled up as a promis- sory note for lOOZ., and induced C. to advance him 100/. upon it. A. was indicted for defrauding C. Held, that C. had his remedy against B. on the note, and that the fraud, therefore, not being upon C, but upon B., the indictment was not sustained by the evidence, (g-) The consideration given for a bill or note must not be illegal. It is said, that the test, whether a contract be contaminated with an illegal transaction, is this : Does the plaintiff require any aid from the illegal transaction to establish his case ?(»•) Considera- tions or contracts are illegal, either, first, at common law; or, secondly, by statute. (s) « Considerations illegal at common law are the following : — First, such as violate the rules of religion or morality. Though the law does not pretend to enforce religious or moral obligations as such, yet it seizes every opportunity of countenancing them ; and, there- fore, will not assist a man whose claim for redress is founded on (o) Ante, see Partnership. (p) Morris v. Lee, 2 Ld. Raym. 1396 ; 1 Stra. 629, s. C. ; Bayley, 6th ed. 509 ; Tbiedemann v. Goldschmidt, 1 De G., P. & J. 4. (j) Rex V. Revett, Bury Summer Assizes, 1829, coram Garrow, B. (r) Simpsoa v. Bloaa, T Taunt. 246 (2 E. C. L. R.) ; 2 Marsh. 542, s. o. («) The reader must not expect a complete enumeration of all the illegal con- siderations affecting a contract, but only such as are of most frequent occurrence, or useful as illustrating some principle. payable to one named or bearer takes it subject to no equities or right of set-off which the maker would have against the original payee. Pettee v. Prout, 3 Gray, 502. / 246 OF THE CONSIDEKAT.IOW. their violation. " Ex turpi causd non oritur actio." "Justice," says Lord Mansfield, "must be drawn from pure fountains." Thus, for example, a bond or note given in consideration of future illicit cohabitation is void, but past cohabitation is not an illegal consideration so as to avoid a deed, though it is not sufficient to support a promise. (^) So the rent of lodgings knowingly let for the purpose of prostitution, is an illegal consideration. (m) A wager as to the sex of a third person is illegal, because it tends to indecent evidence, to injure the feelings of the individual, and disturb the r*1^2T P®^°® °f society.(D) So is a wager as to whether an *un- married woman had borne, or would have, a child,(2;) And any bill or note founded on such illegal considerations would be void. The second sort of agreements, illegal at common law, are such as contravene public policy. If it be merely doubtful whether an agreement be at variance with the public interest, it is not void ; it must be clearly and indubitably in contravention of public policy.(2/) A contract in general restraint of trade, as, not to carry on a particular business anywhere in England, is illegal and void; though an agreement- not to trade within a specific distance of a particular place, or not with certain customers, is good,(s) although unlimited in point of time, (a) A contract in general restraint of marriage is void,(J) as, a bond given by a widow conditional for the payment of a sum of money if she should marry again. (c) And it makes no difference' that the restraint is only for a limited period, as, for six years.(cZ) An undertaking for reward to procure a marriage between two {I) Binnington v. Wallis, 4 B. & Aid. 651 (6 E. C. L. E.) ; Gibson v. Dickie, 3 M. & s'el. 463 ; Nye t. Mosely, 6 B. & 0. 133 (13 B. C. L. R.) ; 9 D. & B. 165, s. o.; Beaumont v. Reeve, 15 L. J., Q. B. 141 ; 8 Q, B. 483 (55 E. C. L. R.), s. C. («) Girardj v. Richardson, 1 Esp. 13 ; Howard v. Hodges, Selw. N. P. 7th ed. 68. («) Da Costa v. Jones, Co'wp. 729. (a:) Ditchburn v. Goldsmith, 4 Camp. 152. [y) Richardson v. Mellish, 2 Bing. 229 (9 E. C. L.. B.) ; 9 Moore, 435, s! 0. (z) Co. Litt. 206, b., n. 1 ; Hunlookv. Blacklowe, 2 Saund. 156, n. 1 ; Mitchel v. Reynolds, 1 P. Wms. 181 ; 10 Mod. 130, a. o. ; Davis v. Mason, 5 T. R. 118 ; Ward V. Byrne, 5 M. & W. 548 ; Tallis v. Taliis, 1 E. & B. 391 (72 E. 0. L. R.). Where the covenant is not to carry on business within two districts, one small and reason- able, and the other large and unreasonable, it is divisible. See Mallau v. May, 11 M. & W. 653; Green v. Price, 13 M. & W. 695 ; Price v. Green, 16 M. & W. 346. (a) Pemberton v. Vaughan, 12 Q. B. 87 (64 E. C. L. R.) ; Sainter v. Ferguson, 7 C. B. 716 (62 E. C.L. R.). (6) Lowe V. Peers, 4 Burr. 2225. (c) Baker v. White, 2 Vern. 215. \d) Hartley v. Rice, 10 East, 22. ' OF THE OONSIDERATIOX. 247 parties is void.(e) A contract tending to the injury of the revenue, by evading or violating the customs and excise laws, is illegal. (/) But if a trader sell goods with the mere knowledge that the pur- chaser intends to make an illegal use of them, without in any way lending his aid to the effectuation of the unlawful purpo^, he may sustain an action on the contract. (^) Considerations impeding the course of public justice, as, dropping a criminal prosecution for a felony or a public misdemeanor, or suppressing evidence, are illegal considerations. (A)(1) But it has been held that compounding a private misdemeanor is *a good consideration for a note.(i) A wager on the result of a criminal prosecution is illegal. (A;) '- -" A note, given after conviction to the prosecutor, for the expenses of the, prosecution, the amount of which are settled by the Court, is legal.(i) So, though the particulars of the arrangement are not- communicated to the Court and sanctioned by them.(TO) And the substitution of a good bill for a forged one, at the instance of the forger, if unaccompanied with any stipulation to stifle a prosecution for forgery, is not illegal. (w) Contracts respecting the sale of public offices are for the most part void at common law,(o) as well as by statute. Any contract tending to cause a neglect of duty in (e) Hall V. Potter, 3 Lev. 411; Roberts v. Roberts, 3 P. Wms. 66; Com. Dig. Chancery, 3 Z. 8. (/) Biggs T. Lawrence, 3 T. R. 454 ; Vandyk v. Hewitt, 1 East, 97 ; Taylor t. Crowland Uas Company, 10 Kxch, 293. {g) Hodgson v. Temple, 5 Taunt. 181 (1 E. C. L. R.). (A) Nerot v. Wallace, 3 T. R. 17 ; Fallows v. Taylor, 7 T. R. 475 ; Edgecombe t. Rodd, 5 East, 294. («) Drage t. Ibberson, 2 Bsp. 643 ; and see Coppock v. Bower, 4 M. & W. 361. (k) Evans v. Jones, 5 M. & W. 77. (I) Beeley v. WingBeld, 11 Bast, 46; see Keir v. Leman, 9 Q. B. 394 (58 E. C. » L. R.). (m) Kirk T. Strickwood, 4 B. & Ad. 421 (24 E. 0. L. R.) ; 1 N. & M. 275, s. c; and see Baker v. Townshend, 1 B. Moore, 120. (re) Wallace v. Hardacre, 1 Camp. 45. (0) Richardson v. Mellish, 2 Bing. 22.9 (9 E. C. L. R.) ; 9 Moore,' 435, s. o. (1) A note given in consideration that the payee would stop a prosecution for a supposed felony, instituted against the maker, and not appear as a witness against him, is founded on an illegal consideration and is invalid. Swan v. Chandler, 8 B. Monroe, 97; Clark v. Ricker, 14 N. Hamp. 44; The Commonwealth v. Johnson, 3 Gushing, 454 ; Gardner v. Maxey, 9 B. Monroe, 90 ; Hinesburgh v. Sumner, 9 Verm. 23 ; Soule v. Bonney, 37 Maine, 128. A note given in part to suppress a prosecution is void, even if for a just debt. Bowen v. Buck, 2 Williams, 308 ; Porter v. Havers, 37 Barbour, 343; Osborn v. Robbins, Ibid. 431. 248 OF THE CONSIDEKATION. a public officer is illegal. Thus, though the 6 Geo. 2, c. 31, au- thorizes parish officers to take security froni the putative father of a bastard child to indemnify the parish, it is not lawful for them to take an absolute promissory note for a sum certain, and such a note is ^id. "It. is a shocking consideration," observes Lord Ellenborough; " that by means of such a security as this, the parish, officers, who have a public duty imposed upon them to take care that the father shall make a proper provision for the maintenance of the child, acquire an interest that the child should live as short a time as possible. "(p) Contracts with a public enemy are illegal; and a bill drawn by an alien enemy on his debtor here, and indorsed to the plaintiff, a British subject resident in the hostile country, cannot be recovered on, though the plaintiff do not sue till»the re- 'turn of peace, and though he were resident at the time of taking the bill in the hostile country.(g') But where a British prisoner in France drew a bill" on an English subject, and indorsed it to the plaintiff, then an alien enemy, it was held, that after the return of peace the plaintiff might recover.(7-) And a bill drawn by a British prisoner, in favor of an alien enemy, cannot be enforced by the payee.(l) (p) Cole V. Gower, 6 East, 110. (g) 'Willison v. Patteson, 7 Taunt. 440 (2 E. C h. R.). (r) Antoine V. Morshead, 6 Taunt. 237 (1 E. 0. L. R.); 1 Marsh, 558, s. o. — '■ ' : ' : (1) Consideration to resign a public office is bad. Meachum v. Dow, 32 Vermont, 721. Resignation of. an office in a corporation is a sufficient consideration for a promissory note. Peck v. Rec(ua, 13 Gray, 407. A note to become due upon the election of A. to a certain office is void upon grounds of public policy as much as any formal wager. Cooper v. Brewster, 1 Minnesota, 94; Nudd v. Burnett, 14 In- diana, 25. A note given by one of several bidders for government contracts to another to induce him to withdraw his bid, is an illegal consideration and cannot be enforced. Kennedy v. Murdick, 5 Harrington, 458. A note made in considera- tion of the promise of a defendant in a divorce suit to withdraw her papers and make no defence is without valid consideration. Stoutenburg v. Lybrand, 13 Ohio (N. S.), 228.' Note for services to be rendered in procuring a pardon held good. Meadow v. Bird, 22 Georgia, 246. A note given to obtain possession of goods Wrongfully withheld is without consideration between the parties to it. White v. Heylman, 10 Casey, 142. Though a bank be specially restricted by its charter from taking more than a certain interest, a note securing higher interest is not void as being a contract which the bank is not authorized to make. Rock River Bank v. Sherwood, 10 Wisconsin, 230. When a party voluntarily receives bank notes which are at a discount, and gives his note for the full amount, it is no defence. Life Ins. Co. V. Lanier, 5 Florida, 110 ; Conwell v. Pumphrey, 9 Indiana, 135. OF THE CONSIDERATION. 249 Among the considerations now or formerly illegal by statute are the following : — 1. Usury. The English statutes on this subject are repealed. *The decisions on them, however, are still not unimportant with a view to general principles. Moreover, usury laws '- ^ exist in the United States and in almost all foreign countries. In France and Holland they have been repealed, but reenacted. It will be more convenient to discuss the nature- and former conse- quences of usury in the Chapter on Interest. 2. Gaming considerations. The old statute 16 Car. 2, c. 7, avoided all securities, written or oral, given to secure any sum of money exceeding lOOZ. lost at play.(s) And the 9 Anne, c. 14, expressly avoided all written contracts for any sum of money won at play, or by betting at play, or lent for playing or betting,(i) and by subjecting to the animadversion of criminal justice, all winnings above lOZ. it impliedly avoided all contracts to enforce them also.(M) Both acts avoided judgments for gaming debts, but the judg- ments to which they refer, are voluntary judgments given by the loser, and not judgments obtained by an adverse action.(a;) Any game, whether of skill or chance, was within the acts.(y) But both these acts are now repealed by the 8 & 9 Vict. c. 109, s. 15, except so much of the statute of Anne as was altered by the 5 & 6 Will. 4, c. 41. The statute 8 & 9 Vict. c. 109, makes cheating at play an oflFence indictable as obtaining money under false pretences.(s) It further makes all gaming contracts, written or oral, null and void. (a) Money lent to play at any illegal gamp cannot be recovered back by the lender. '• This principle," says Lord Abinger, " was not («) See Bentinck v. Connop, 5 Q. B. 693 (48 E. 0. L. E.). {t] See also 12 Geo. 2, u. 28, and 18 Geo. 2, u. 34. , («) Sect. 5; see Daintree v. Hutchinson, 10 M. & W. 85 ; Applegarth v. CoUey, 10 M. & W. '723. (a;) Lane v. Chapman, 11 Ad. & E. 966 (39 E. C. L. E.) ; 3 P. & D. 668, s. 0. ; affirmed in error, Ibid. 980. (j)) Sigell T. Jebb, 3 Stark. 1 (3 E. C. L. E.). («) Sect. 17. (a) Sect. 18. But not illegal in the sense of criminal, or in such a sense as to impose on the subsequent holder of a negotiable instrument the obligation of prov- ing the consideration he himself gave. Fitch v. Jones, 24 L. J., Q. B. 293 ; 5 E. & B. 238 (85 E. C. L. R.), s. c. See further, on the construction of the act. Parsons v. Alexander, 24 L. J., Q. B. 277 ; 5 B. & B. 263 (85 E. 0. L. R.), s. c. j Ooombes v. Dibble, 1 Law Eep. 248, Bxch. 250 OF THE CONSIDERATION. for the first time laid down in Cannan v. Bryce,(6) but by that case fully settled that the repayment of money lent for the express purpose of accomplishing an illegal object cannot be enforced."(e) P^-jnc-i *To discuss in detail the complicated provisions of the gaming acts, and the minute distinctions -which arise on them, would be to wander from the main subject. Horse-races, though legalized by 13 Geo. 2, c. 19, and 18 Geo. 2, c. 34, were within the former acts against gaming, (c?) But a bet under lOZ., on a legal horse-race, was valid ;(e) though a bill or note given to secure it would have been void.(/) But if the horse- race be for a sum less than 5Ql.,{cf) or above 50Z., but not a contest between horses running on the turf, the bet was void. (A) A bill of exchange or note given for a gaming debt was, until recently, void, even in the hands of an innocent indorsee for value, as against the party losing at play: but as against other parties it was, and still is, valid. Thus, if a bill were accepted, or a note made, for a gaming debt, no party could charge the acceptor or maker ;(«) but the drawer and indorser were and are nevertheless liable. (A)(1) The same rule of law applied to bills or notes given for the ran- som of captured ships or cargoes :(Z) to bills or notes given by a bankrupt to his creditor to induce him to sign the bankrupt's cer- tificate. (m) In all these cases, as well as in the case of usury, the acts of parliament avoiding bills or notes, so far as they make the (S) 3 B. & A. 179. (c) M'Kinnell v. Robinson, 3 M. & W. 434. (d) Goodburn v. Marley, 2 Stra. 1159; Clayton v. Jennings, 2 W. Bl. 706; Blax- tou V. Pye, 2 Wils. 309; Shillito v. Theed, 1 Biag. 405 (20 E. C. L. B.) ; 5 M. &P^ 303, s. C. («) M'AUister v. Haden, 2 Camp. 438. (/) 9 Anne, c. 14, s. 1. (g) Johnson v. Bann, 4 T. R. 1. (h) Ximenes v. Jacques, 6 T. R. 499 ; Whaley v. Pajot, 2 B. & P. 51 ; see now 3 & 4 Viet. c. 5, which repeals 13 Geo. 2, c. 19, and 8 & 9 Vict. c. 109. («•) Bowyer. V. Bampton, 2 Stra. 1155; Shillito v. Theed, 1 Biag. 405 (20 B. 0. L. E.) ; 5 M. & P. 303, s. 0. (i) Ibid. ; Edwards v. Dick, 4 B. & Aid. 212 (6 E. C. L. R.). (I) 45 Geo. 3, 0. 72, s. 17. (m) 12 & 13 Vict. c. 100, s. 202 ; Wiggins v. Read, C. P., T. T. 1862 ; or not to oppose the order for discharge, 24 & 25 Vict, c, 134, s. 166. (1) A note given for money lent for gambling purposes cannot be recovered. Cutler V. Welsh, 43 New Hampshire, 497. OF THE CONSIDERATION. 251 instruments absolutely void, are repealed by the 5 & 6 Will. 4, c. 41, s. l.(w) This statute enacts, that in these cases bills or notes ■which would other-wise have been void, shall only be taken to have been given for an illegal consideration. (o) *The efiFect of p^^ nr.-| the enactment is conceived to be, that they are good in the hands of an innocent indorsee for value against all parties.(p) The second section of this statute enacts, that if a loser at play gives a negotiable instrument, void under the acts against gaming, and pays the transferee, he may recover back the money so paid from the person to whom he originally gave the bill or note.fg') Even under the old law a renewed security was good, if given to an innocent indorsee before the bill fell due.(r) 3. Stock-jobbing. The Stock-Jobbing Act was the 7 Geo. 2, c. 8, made perpetual by 10 Geo. 2, c. 8, but now both statutes are repealed by the 23 & 24 Vict. c. 28.(s) The principal provisions of the first-mentioned statute were as follows :(i) 1. Betting upon stock was prohibited; that is, a contract to pay or receive a certain sum of money for the liberty to deliver or not to deliver, or to accept or refuse a certain quantity of stock at a fixed price on a given day. Such a contract is declared void, the (») This statute is preserved in force by 8 & 9 Vict. c. 109, s. 15, the effect of which seems to be, that a winner of stakes may recover, though a promissory note for the amount would be void. Batty v. Marriott, 17 L. J., C. P. 215 ; 5 0. B. 818 (57 E. C. L. E.), a. o. . (o) As to the effect of this enactment, see Edmunds v. Groves,- 2 M. & W. 642. Both sections of the statute are prospective. Hitchcocic v. Way, 2 N-. & P. 72 ; 6 Ad. & El. 9J:3 (33 E. G. L. R.), s. c. ; Humphreys v. Earl of Waldegrave, 6 M. & W. 622. {p) Hay V. Ayling, 16 Q. B. 423 (71 E. 0. L. E.). See Pitch v. Jones, 5 E. & B. 238 (86 E. C. L. E.). But see Goldsmid v. Hampton, 5 0. B., N. S 94 (94 E. C. h. E.). In the case of a bankrupt it is now expressly so enacted, 24 & 25 Vict. t. 134, s. 166. (y) But it is no defence to an action against' an acceptor that the bill was given for bets on horse-races, made by the dra,wer as his agent, and paid without his request. Oulds v. Harrison, 10 Exch. 572. (r) George v. Stanley, 4 Taunt. 683. («) Qucere, whether some cases of gaming in stock may not have been within 9 Anne, c. 14, and be not now within 8 & 9 Vict. c. 109. (!) Transactions in foreign stock are not within this statute. Henderson v. Bise, 3 Stark. 158 (3 E. C. L. E.) ; Wells v. Horter, 2 Bing. N. C. 723 ; Oakley v. Eigby, 2 Bing. N: 0. 73 i (29 E. 0. L. E.) ; nor railway shares, Hewitt v. Price, 4 M. & G. 355 ; Williams v. Trye, 18 Beav. 366. 252 OF THE CONSIDERATION-. money paid is made recoverable, and both parties are subject to the penalty of 500?., unless the money paid has been recoveredior refunded. 2. The payment of money, instead of delivering or receiving stock, subjects to the penalty of 1001. 3. It has been supposed that contracts to buy or sell stock, of which the seller is not at the time possessed, subjected both parties to the penalty of 5001. But such contracts were afterwards held to be legal.(M) It was formerly held, that money expended by another person in settling a stock-jobber's differences for him, or money lent him r*lS71 *° settle them with, could be recovered..(») *But it was afterwards settled, that as the fifth section of the act 7 Geo. 2, e. 8, prohibits expressly the payment of money for the arrangement of differences, a person paying differences for another, or lending him money to pay them himself, advanced money for an illegal purpose, and could not recover it back.(?/)(l) The following cases relating to bills have been decided on this statute :^The defendant employed a broker,(g) to pay differences for him, and after they were settled a dispute arose between them as to the amount of money so paid by the broker. The case was referred to the plaintiff and thre;e other arbitrators, who awarded the sum of 306Z. 12s. 6d. to be due from the defendant to his broker. The broker then drew on the defendant for 1001., part of this sum ; the defendant accepted the bill, and the broker indorsed it to the plaintiff. It was held that the bill wias void as between the broker and the defendant, and the plaintiff, having been an arbitrator, had notice of the illegal consideration, and stood in the same situation as the broker, (a) Where a broker had settled dif- («) Morlimer v. M'Callan, 7 M. & W. 20 ; affirmed 9 M. & W. 636. (x) Faikney v. Keynous, 4 Burr. 2069 ; Petre v. Hannay, 3 T. R. 418. (y) Canrian v. Bryce, 3 B. & Aid. 179 (5 E. C. L. R.) ; M'Kinnell v. Robinson, 3 M. & W. 434. (z) Stock brokers are within the statutes 6 Anne, c. 16, s.' 4, and 57 Geo. 3, c. 40 ; Clarke v. Powell, 4 B. & Ad. 846 (24 E. C. L. R.) ; 1 N. & M. 492, s. c. ; by which brokers are prohibited under a penalty from acting in London without admission by the mayor and aldermen. For the condition of the bond given by brokers, and the oath taken by them, see Kemble v. Atkins, Holt, N. P. 0. 427. (a) Steers v. Lashley, 6 T. E. 61 ; 1 Esp. 166, s. 0. (1) A note given for money paid by the request of the maker to a broker, for losses sustained in illegal stock-jobbing transactions, is valid. Wyman v. Fiske, 3 Allen, 338. OF THE CONSIDERATION. 253 ferences for his principal in omnium, had taken his principal's acceptance for the amount, and indorsed the bill ^rhen overdue, it •was held, first, that jobbing in omnium was within the act ; sec- ondly, that the bill was void in the hands of the broker; and thirdly, that having been indorsed when overdue, it was also void in the hands of the indorsee, as .against the acceptor. (5) A stock- jobber gave his broker a promissory note for differences paid for him by his broker, and the broker indorsed it ovierdue to the plain- tiifs. The plaintiffs threatened to sue the defendants upon the note, but they consented to give up the note, and take the defend- ant's bond instead, knowing, at the time they took the bond, that the note had been given on an illegal consideration. Held, that they could not originally have recovered upon the note, nor after- wards upon the bond.(c) Where a man gave his acceptance for differences owing from himself to the drawer, and the drawer indorsed the bill for value without notice, it was held that the indorsee *might recover against the drawer.(c?) And as the statute does not expressly avoid securities given for <- -* differences, it should seem, the indorsee might have recovered against the acceptor. (e) Where a man sells stock of which he is not possessed, and afterwards buys it and transfers it to the ven- dee, he might, notwithstanding the statute, maintain an action for the price.(/) This act is to be construed strictly.(^) Besides the cases which have been mentioned, there are many othfer instances of securities expressly avoided by the legislature; as, gaming policies on ships or lives ;(A) sale of an oflSce ;(i) a stip- ulation with a sheriff for ease or favor ;{¥) a security whereby a creditor of a bankrupt who has proved his debt is to receive more than others ;(/) or to receive anything for signing the bankrupt's (i) Brown t. Turner, 7 T. E. 630 ; 2 Esp. 631, B. 0. (c) Amory v. Merryweather, 2 B. & C. 573 (9 E. C. L. E.) ; 4 D. & E. 86, a. C. {d) Day v. Stuart, 6 Bing. 109 (19 B. C. L. E.) j 3 M. & P. 334, s. c. (e) See Mr. J. Holrojd's observations in Broughton v. Manchester Water Works Company, 3 B. & Aid. 10 (5 E. 0. L. R.). (/J Mortimer v. M'Oallan, 7 M. & W. 20 ; affirmed 9 M. & W. 636. {g) Wells V. Porter, 2 Bing. N. C. 730 (29 E. C. L. R ) ; Hewitt v. Price, 4 M. & G. 355. (A) 19 Geo. 2, c. 37 ; 14 Geo. 3, c. 48. (i) 5 & 6 Edw. 6, c. 16 ; 49 Geo. 3, c. 126 ; 53 Geo. 3, c. 129. (4) 23 Hen. 6, t. 9. {I) 12 & 13 Viet. 0. 106, s. 268 ; Eoae v. Main, 1 Bing.N. 0. 357 (27 E. C. L. E.) ; 1 Scott, 127, s. 0. ; Davis v. Holding, 1 M. & W. 159. 254 OF THE CONSIDERATION. certificate ;(m) or for not opposing the order for his discharge ;(«) a security given by a man for a debt from vfhich he has been dis- charged by the Insolvent Debtors' Act,(o) And to these, (except where the statute(ji7) gives a title to a holder for value without notice,) the same general rules apply as to securities given for a gaming debt, before that statute. Many cases there are, also, in which, though the transaction is prohibited by the legigjature, the security is not expressly avoided. In such instances, the bill is void in the hands of parties to the illegal transaction, or cognizant thereof, but not in~the hands of a hand fide indorsee for value, before the bill is due, without notice of the illegality.(3)(l) The 24 Geo'. 2, c. 40, s. 12, prohibits per- sons from recovering a debt incurred by sale of spirituous liquors, in less quantities than of the value of 208. ; and, where part of *the consideration for a bill was for spirituous liquors, \- -I within the statute, and part for money lent, the bill was wholly void in the hands of the payee.(r) But where the defend- ant was indebted to the plaintiff for board and lodging, and for spirituous liquors in quantities, of less value than 208., and having made the plaintiff several unappropriated payments, gave a promis- sory note for the balance, it was held that the plaintiff might appropriate these payments to the discharge of his demands for spirituous liquors, and that the consideration of the note being (m) 12 k 13 Vict. c. 106, s. 202 ; Birch T. Jervis, 3 0. & P. 379 (14 E. C. L. E.) ; Taylor v. Wilson, 5 Exch. 251 ; Hankey T. Cobb, 1 Q. B. 490 (41 E. C. L. R.); Smith V. Saltzman, 9 Exch. 235. («) 24 & 25 Vict. c. 134, s. 166. (0) Evans V. Williams, 1 0. & M. 30 ; 3' Tyrw. 266, s. c. ; Ashley v. Killiok, 5 Ml & W. 509 ; and see Kernot v. Pittis, 2 E. & B. 421 (T5 B. C. L. R.) ; Humphreys v. Willing, 32 L. J., Ex. 33 ; 1 Hurl. & Colt. 7. (^) 5 & 6 Will. 4, c. 41, s. 1 ; 24 & 25 Vict. c. 134, s. 166. (}J Wyat V. Bulmer, 2 Esp. 538. (r) Scott T. Gilmore, 3 Taunt. 226. Qticere tamen^ see Crookshanks v. Rose, 1 M. & Rob. 100 ; 5 C. & P. 19 (24 E. 0. L. R.), s. 0. Where two sorts of spirits had been supplied at one time, the amount of each sort being under 20s., but of both together above 20«., it was held that the value of both was recoverable. Owens V. Porter, 4 C. & P. 367 (19 E. 0. L. R.). (1) If the price of goods sold, the sale whereof is prohibited by law,, constitute part of the consideration of a promissory note, the note is void between the original parties to it. Carlton v. Bailey, 7 Poster, 230. Note given for illegal consideration is good in the hands of a bon^ fide indorsee for value. Norris ,v. Langley, 19 N. Hamp, 423. OF THE CONSIDERATION. 255 thus purged of those items, the plaintiff might recover on the note.(8) So a bill of exchange accepted to secure payment of money taken at the doors of an unlicensed theatre, is void(<) in the hands of the payee, who knew the theatre to be unlicensed. Therefore, also, as the statute 57 Geo. 3, c. 99, prohibits spiritual persons from trading, it was held, that a joint-stock banking company,, in which a beneficed clergyman held shares, could not sue as indorsee on a bill of exchange.(M) In consequence of this decision, an act of parliament, 1 Vict. c. 10 (continued by 4 Vict. c. 14), was passed to obviate the inconvenience. But a note given for the amount of an attorney's bill not delivered pursuant to 6 & 7 Vict. c. 73, is good. (a) If a person be employed to make an illegal contract, and at the request of his principal discharges a claim made on such a contract, the agent can recover from the principal the money so paid on his account, (y) It is no defence that the plaintiff being a transferee of a bill or note had notice of a fraudulent or illegal consideration, if he can deduce title from a prior party not shown to have had any such notice.(s) *A judgment recovered by default will not be set aside, r*-|4ni on the ground of illegality in the consideration, unless the defendant can affect the plaintiff with knowledge of that fact : but the Court has permitted him to try that in an issue, (a) If part of the consideration of a bill or note be fraudulent or («) Crookshanks v. Rose, 1 M. & Eob. 100; 5 C. & P. 19, s. o. The 24 Geo. 2, c. 40, s. 12, is partially repealed by the 25 & 26 Vict. c. 38, as to spirituous liquors consumed elsewiiere than on the premises where sold. (i!) De Begnis v. Armistead, 10 Bing. 101 (25 B. 0. L. B.); 3 M. & P. 511, s. c. (u) Hall T. Franklin, 3 M. & W. 259 ; 1 Har. & W. 8, s. 0. (x) Jeffreys v. Evans, 14 M. & W. 210. (y) Knight V. Gambers, 24 L. J., C. P. 121 ; 15 Com. B. 562 (80 E. 0. L. R.), 3.C.; Knight T. Fitch, 24 L. J., 0. P. 122 ; 15 Com. B. 500 (80 E. C. L. R.), s. 0. ; Rose- warne v. Billing, 33 L. J., C. P. 55 ; 15 Com. B., N. S. 316 (109 E. C. L. B.), s. 0. (z) Masters v. Ibberson, 18 L. J., C. P. 348; 8 C. B. 100 (65 E. C. L. R.), s. c. (a) George v. Stanley, 4 Taunt. 683 ; Davison v. Franklin, 1 B. & Ad. 142 (20 B. 0. L. B.). 256 OF THE TRANSFER OF BILLS AND NOTES. illegal, the instrument is vitiated altogetlier.(6) Where parties have woven a web of fraud or wrong, it is said to be no part of the duty of Courts of Justice to unravel the threads.(l) If a bill originally given upon an illegal consideration be renewed^ the renewed bill is also void,(c) unless the amount be reduced by excluding so much of the consideration for the original bill as was illegal, (ci) And if a bill or note be originally without any consideration, and it is given up, another bill between the same parties being substi* tuted for it, the giving up of the first bill is no consideration for the second, but both are alike voi4 for want of consideration. (e) [*141] *CH AFTER XI. OF THE TKANSFBIT OF BILLS AND NOTES. DIVISION OF THE SUBJECT . . . 142 WHAT BILLS TRANSFEBABLE . , 142 EFFECT OF INDORSEMENT OF A BILL NOT NEGOTIABLE .... 142 OF A NOTE NOT NSaOTIABLE . . 143 SUBSEQUENT INSERTION OF WORDS CRE- ATING NEGOTIABILITY . . .143 MODES OF TRANSFER . . . . 143 BLANK INDORSEMENT . ' . . . 144 SPECIAL INDORSEMENT . . . 144 (6) Robinson v. Bland, 2 Burr. 1011 ; Scott v. Gilmore-, 3 Taunt. 226 ; Crook- shanks T. Rose, 5 Car. & P. 19 ; 1 M. & Rob. 100, s. c. ; Story on Promissory.Notes, s. 190 ; Williams v. Bulmore, 33 L. J., Oh. 461. (c) Chapman v. Black, 2 B. & Aid.- 588 ; Wynne v. Callender, 1 Russ. 293 ; Preston v.jrackson, 2 Stark. 237 (3 E. C. L. R.). ,. ' ' (d) Ibid.; and see Hubner y. Richardson, Bayley, 6th ed., 527. In some cases, where. there has been a change of parties, the defendant must plead the whole agreement on which the renewed bill was given. Boulton v. Coghlan, 1 Bing. N. C. 640 (27 E. 0. L. R.). In others, where the parties are the same, it is sufBcient to plead the illegality attaching to the original bill without mentioning the substi- tution. Hay V, Ayling, 20 L. J., Q. B. 171 ; 16 Q. B. 423 (71 E. C. L. R.), s. c. (c) Southall T. Rigg, 11 0. B. 481 (73 E. C. L. R.). It has, however, been held that bills accepted subsequently to the passing of the 17 & 18 Vict. c. 90, abolish- ing the usury laws, in renewal of bills agcepted before that act, are not withont consideration. Flight v. Reed, 32 L. J., Exch. 265 ; 1 Hurl. & Colt. 703, s, o. ; Martin, B., ditseniiente. (1) Carleton v. Bailey, 7 Foster, 230. Where a part of the consideration is illegal and the contract is entire, an action cannot be sustained for any part of the amount. Ooburn v. Odell, 10 Foster, 540 ; Perkins v. Cummings, 2 Gray, 258. OF THE TRANSFER OF BILLS AND NOTES. 257 ON THE FACE OP BILL . . . 145 AN ALLONGE 145 MISSPELT INDORSEMENT . . .145 BY A PLnRALlTT OF HOLDERS . .145 CONVERSION OF BLANK INTO SPECIAL INDORSEMENT .... 145 DELIVERY NECESSARY . . .146 LIABILITY OF INDORSEB . . . 146 HOW DECLINED 14V BY INDORSEMENT SANS RECOURS . 147 BY AGREEMENT ..... 147 BY CONVERTING BLANK INTO SPECIAL INDORSEMENT .... 148 MAY BE SUSPENDED ON A CONDITION . 148 WHAT INDORSEMENT ADMITS . .148 STRIKING OCT INDORSEMENTS . . 149 RIGHTS OF INDORSEE . . . 149 OF TRANSFEREE TO COMPEL INDORSE- MENT ...... 15o WHERE A BILL IS RE-INDORSED TO A PRIOR INDORSER .... 150 'where the INDORSER IS A TRUSTEE . 151 RESTRICTIVE INDORSEMENTS . .152 LIABILITY OF PERSONS TRANSFERRING BY DELIVERY . . . .- 153 NO LIABILITY ON THE INSTRUMENT . 154 NOR IN GENERAL ON" THE CONSIDERA- TION 154 WHERE THE BILL IS- CONSIDERED AS SOLD 154 UNLESS BILL OR NOTE GIVEN FOR PRE- EXISTING DEBT . . . .155 OTHER EXCEPTIONS TO THE GENERAL RULE 156 SALE TO AN -AGENT OF A FOREIGN PRINCIPAL 157 WARRANTY OF GENUINENESS . . 157 NO LIABILITY TO SUBSEQUENT TRANS- FEREE , • 157 EFFECT OP FRAUD .... 157 EIGHTS OF TRANSFEREE BY DELIVERY 157 FORMER EFFECT OP NEGLIGENCE IN THE TRANSFEREE . . ■ .158 PRESENT EFFECT OF NEGLIGENCE OH FRAUD 158 TITLE OP AN AGENT . . . .159 PLEDGING BILLS PAYABLE TO BEARER . 159 I OTHER INSTRUMENTS PAYABLE TO BEARER 159 METALLIC TOKENS .... 159 TRANSFER UNDER PECULIAR CIRCUM- STANCES 160 BEFORE BILL FILLED UP . . . 160 AFTER REFUSAL TO ACCEPT . . 160 WHERE THE TRANSFEREE HAS NO NO- TICE 161 AFTER DUE 161 TRANSFER OF OVERDUE CHECK . .163 A NOTE PAYABLE ON DEMAND . . 1 64 PLEADING , 164 EQUITABLE BELIEF IN CASE OF OUT- STANDING OVERDUE BILL . . 164 BURTHEN OF PROOF .... 164 CHECK DRAWN ON BEARER'S BANKER . 164 AFTER ABANDONMENT OF BIGHT . . 165 AFTER PAYMENT .... 165 BY OTHER PARTIES . . . . 1 65 AFTER PREMATURE PAYMENT . .166 AFjIbB partial PAYMENT . . . 166 WHERE THERE IS A QUESTION WHETHER THE BILL- WAS PAID OR TBANS- .FERRED 166 TRANSFER TO ACCEPTOR . . .167 *TRANSFER FOR PART OF T* 1/1 OH THE SUM DUE . 167 FOR RESIDUE UNPAID- AFTER RELEASE AFTER ACTION BROUGHT . TRANSFER ABROAD . AFTER HOLDEr'S» DEATH . Aw AFTER BANKRUPTCY . AFTER MARRIAGE BY DEPOSIT WITH' A BANKER BY WILL .... DONATIO MORTIS CAUSA HOW IT RESEMBLES A LEGACY HOW IT DIFFERS FROM A LEGACY EXECUTION LARCENY .... EMBEZZLEMENT EFFECT op A TRANSFER IN REMOVING TECHNICAL DIFFICULTIES IN SUING WHEN A COURT OF' EQUITY WILL RE STRAIN NEGOTIATION 167 167 167 168 168 168 168 168 169 169 171 171 171 172 172 172 172 In examining the subject of the transfer of bills and notes, let us consider, first, what bills are transferable; secondly, the modes 17 258 OF THE TRANSFER OF BILLS AND NOTES, of transfer; thirdly, the nature and extent of an indorser's lia- bility; fourthly, the rights of an indorsee; fifthlyj the liability of a person transferring by delivery ; sixthly, the rights of a trans- feree by delivery ; seventhly, transfer under peculiar, circum- stances ; eighthly, and lastly, when a Court of Equity will, restrain a transfer. First, as to -what bills, are transferable, (a) We have already seien, that a bill or note which does not contain a direction or pro- mise to pay to the order of the payee, or to bearer, is not transfer- able ; that is, not so as to charge the drawer or acceptor by an assignment of the right of action. But if, nevertheless, the payee do indorse a hill not negotiable, he is liable on his indorsement to his indorsee.(5) For every in- dorser of a hill is in the nature of a new drawer.(e)(l) If the bill, however, were not originally negotiable, it seems to have been con- sidered by the Court of Common Pleas, that the first drawing ex- hausts the stamp, and that the indorsee cannot acquire a right, without a new stamp,(d) which cannot by law be impressed. If ■ the *declaration on a bill indorsed in blank but not origi- '- J nally negotiable, or not indorsed by the payee, state that the defendant, the indorser, drew and indorsed the bill, payable to Lis order, it will upon evidence be open to the double objectioni that the same act is treated both as a drawing and an indorsement, which it cannot be, and that the bill is described as made payable (0) See the obseryations on the AssignabilUy of Bills, ante, p. 2. (6) Hill V. Lewis, 1 Salk. 132; Smallwood T. Vernon, 1 Stra. 4t8; Gwinnell >. Herbert, 5 Ad. & E. 436 (31 E. C. L. B.); Burmester t. Hogarth, U M. & W. 97; Penny v. Innes, 1 C, M. & R. 439 ; 5 Tyr. 107, s. 0. But see Plimley T. Westley, infra, where the Court seemed to think that the stamp laws might interpose an •obstacle. (c) And therefore a blank indorsement on a bill not negotiable, has been held to ■operate as the drawing of a bill payable to bearer. Matthews v. Blozam, 33 L. J., Q. B. 209. See Allen v. Walker, 2 M. & W. 317 ; 5 Dowl. 460. {d) Plimley t. Westley, 2 Bing. N. C. 249 (29 E. C. L. R.>; 2 Scott, 423; 1 Hodges, 324, s. c, which, however, was the case of a note. (1) The indorsement of a note is not an assigHment of a claim against the maker, 'bat a bill upon the maker for the money he has agreed to pay in favor of the in- ■dorsee. Hicks v. Wirth, 4 E. D. Smith, 213. OF THE TRANSFER OF BILLB AND NOTES. 259 to order, whereas the effect of the blank indorsement is to make it payable to bearer.(e)(l) But the indorsement of a. note (whether originally negotiable or not), by one to whom it has not been transferred, will not make the indorser liable on his indorsement.(/) For though every indorser of a bill may be treated, without inconvenience, as a new drawer or maker (for in that character he still requires notice of dishonor), yet an indorser of a note cannot be treated as a drawer or maker of the note, without altering his situation for the worst, and depriving him of the right to notice of dishonor. . (e) Burmester v. Hogarth, 11 M. & W. 97. (/) Gwincell v. Herbert, 5 A. & E. 436 (31 E. C. L. B.) ; 6 N. & M. 723, s. 0. ; but see Story on Promissory Notes, s. 138. (]) The indorsee of a note in its terms not negotiable, may sue the indorser in his own name. Leidy v. Tammany, 9 Watts, 353. The indorser of paper not nego- tiable is only responsible where he specially contracts to be so, or where he trans- fers the paper fraudulently ; and in the latter case, not upon the indorsement, but by special action for the consideration paid by the indorsee. Kirkpatriclt v. McCul- lough, 3 Humph. 171. The indorser of a note not negotiable has no right in an action against him to insist upon previous demand and notice ; his indorsement is equivalent to a guaranty. Seymour v. Van Slyck, 8 Wend. 403. The indorser of a note not negotiable is liable to his Indorsee in the same manner as in case of a negotiable note; Jones v. Pales, 4 Mass. 245 ; Sanger v. Stimpson, 8 Ibid. 260. Every indorsement of a bill may be regarded as a new bill, drawn by the indorser on the acceptor in favor of the indorsee ; and the indorsee may sue the acceptor, though the bill be not payable to order, and even though no payee is mentioned in, the bill. Van Staphorst v. Pearce, 4"Mass. 268. The indorser of a promissory note not negotiable, is not an original promisor, nor does he engage that the maker shall pay the note at all events. Huntington v. Harvey, 4 Conn. 124. The statute 3 & 4 Anne, c. 9, distinguishes between the indorsement and assignment of a negotiable note, and authorizes the holder by either mode of transfer to bring suit in his own name against the maker or indorser. An assignment of a promissory note transfers to the holder the rights of the assignor ; the assignor being responsible for nothing more than the genuineness of the claim. Lyons v. Divelbis, 22 Penna. State Rep. 185. As to the effect of the Indorsement of a non-negotiable note, and the liability of the indorser, see Fay v. Jones, 18 Barbour, 340 ; Bircleback v. Wilkins, 10 Harris, 26; Thompson .V. M'CIelland, 5 Casey, 475; Ranson v. Sherwood, 26 Conn 437; Helper V. Alden, 3 Minnesota, 332; Peddicord v. Whittam, 9 Iowa, 471; Macy v. Kendall, 33 Missouri, 164; Wareham Bank v. Lincoln, 3 Allen, 192. In an action on a due bill, not negotiable, by a third party to whom it had been assigned, the maker has every legal set-off against the holder that he had against the original payee. Thompson v. M'CIelland, 5 Casey, 475; White v. Heylman, 10 Ibid. 142; Keagy v. Commonwealth, 7 Wright, 70. 260 01" THE TRANSFER OF BILLS AND NOTES. . The words or to his order or to bearer, if omitted by mistake may be afterwards inserted, without vitiating the instrument either at common law or under the Stamp Act.(^) Whether a bill or note be negotiable or not is a question of law.(A) Secondly, as to the modes of transfer. We have observed, that a bill or note, if payable to order, is not transferable, except by indorsement; but that, if payable to bearer, it is transferable by mere delivery.(i) If a bill be made payable to A., or order, for the use of B., B. has but an equitable title, and the right of transfer is in A. a\one.{k) r*1441 *Indorsements are of two sorts: an indorsement in blanJc, or, as it is sometimes termed, a blank indorsement, and an indorsement in full, or special indorsementi(?) No par- ticular form of words is essential to any indorsement. A blank indorsement is made by the mere signature of the indorse!- (usually and properly, though not necessarily) on the back of the bill;(m) its effect is to make the instrument thereafter payable to bearer,(«)(l) (g) Kershaw t. Cox, 3 Esp. 246. See the Chapter on Alteration. (h) Grant v. Taughan, 3 Burr. 1516. (i) It is conceived, that if an agent, a banker for example, hold a bill transfer- able by delivery, a direction given to him by the ovpner to hold it for another, is a sufficient transfer by delivery. And that if the owner make over a bill transferable by delivery, by deed, and perhaps by any valid written or verbal contract, without actually delivering the bill, the deed amounts to delivery in law, and the transferer holds it as agent of the transferee, (A) Evans v. Cramlington, Garth. 5; Cramlington v. Evans, 2 Vent. 207; Skin. 264. (I) The mark of a person who cannot write is a sufficient indorsement. George V. Surrey, M. & M. 516. (m) See infra. (n) Peacock v. Rhodes, Doug. 611 ; Francis v. Mott, Doug. 612. (1) The contract primd facie implied from a blank indorsement of a negotiable promissory note by a third person, is that the note is due and payable according to its tenor ; that the maker will be able to pay it at Maturity ; and that it is collect- able by the use of due diligence. Laflin v. Pomroy, 11 Conn. 440 ; Perkins v. Catr lin, Ibid. 213 ; Walton v. Scott, 4 Ibid. 527. Indorsement in blank of a note by one to whom it is not payable, as between the original parties, may be shown by parol to have been merely a collateral undertaking. Barrows v. Lane, 5 Vermont, 161. By the law merchant, bills and notes payable to order, can be transferred only by indorsement. Hestone v. Williamson, 2 Bibb. 83 ; Hopkirk v. Page, 2 Brock. 20 ; Taylor v. Binney, 7 Mass. 479 ; Blakely v. Grant, 6 Ibid. 386 ; Russell v. Swan, 16 Ibid. 314. OF THE TRANSFER OF BILLS AND NOTES. 261 "An indorsement in blank," says Lord Ellenborough, "conveys a joint right of action to as many as agree in suing on the biIl."(o) (o3 Ord V. Portal, 3 Camp. 239. The American Courts hare been very much agitated by the question in what light a party is to be regarded who, not being the payee, writes his name on the back of the note before it is delivered. In a very large majority of the cases he is treated as an original promisor or surety, and not as indorser. Baker v. Briggs, 8 Pick. 122 ; Sumner t. Gay, 4 Ibid. 311 ; Austin t. Boyd, 24 Ibid. 64; White v. Howlaud, 9 Mass. 314; Malbon r. Southard, 36 Maine, 147. See also Tenneey v. Prince,' 4 Pick. 385 ; Ulen v. Kittredge, 7 Mass. 233 ; Birchardv. Bartlet, 14 Mass. 279; Moies V. Bird, 11 Mass. 436; Baker v. Scott, 5 Richardson, 305; Lewis v. Harvey, 18 Mis- souri, 17 ; Perry v. Barsit, Ibid. 140 ; Fear v. Dunlap, 1 6. Greene, 331 ; Pierson v. Boyd, 2 Duer, 33 ; Peckham v. Oilman, 7 Minnesota, 446 ; Richards v. Warring, 39 Barbour, 42 ; Pearson v. Stoddard, 9 Gray, 199; Brett v. Marston, 45 Maine, 401 ; Baker v. Block, 30 Missouri, 229 ; Perkins v. Barstow, 6 Rhode Island, 505 ; Childs T. Wyman, 44 Maine, 433; Hawkes T. Phillips, 7 Gray, 284; Carpenter v. Oaks, 10 Richardson (Law), 17 ; - Carr v. Rowland, 14 Texas, 275 ; Cecil v. Mix, 6 Indiana, 478 ; Webster v. Cobb, 17 Illinois, 459 ; Ambler v. Hillier, 9 Richardson ,(Law), 243 ; Malbon v. Southard, 36 Maine, 147 ; Leonard v. Wildes, Ibid. 265 ; Schneider v. Schiffman, 20 Missouri, 571; Sargent v. Robbins, 19 Now Hampshire, 572. An indorsement by one not the payee creates a liablity as an original promisor or surety — and it may be explained by parol evidence. Cook v. Southwick, 9 Texas, 615 ; Rigg^ V. Waldo, 2 California, 485 ; Clarke v. Smith, Ibid. 605. The parties are presumed to stand to each other in the relations in which their names appear. As between themselves and as against a holder with knowledge, the facts may be shown. White- house V. Hanson, 42 New Hampshire, 9. When one indorses a note drawn by a third person and payable to plaintiff or bearer, he may be charged as drawer, indorser or guarantor, according to the circumstances as shown by the evidence. M'Celvey V. Noble, 12 Richardson (Law), 167 ; M'Creary v. Bird, Ibid. 554. When one places his name on the back of a note, the presumption is that he intends to assume the liability of an indorser and nothing more ; but this presumptioa may be rebutted by parol evidence that he intended to assume the liability of !>■ maker, in which case he will be regarded as a joint maker. Sill v. Leslie, 16 Indiana, 236 ; Snyder v. Oatman, Ibid. 265; Boque v. Melick, 25 Illinois, 91 ; Cady v. Shepard, 12 Wiscon- sin, 639 ; Davis v. Barron, 13 Ibid. 227. Strangers endorsing for the benefit of the maker are not liable as joint makers, if the payee afterwards write his name as indorser before their's. Clapp v. Rice, 13 Gray, 403. A. having procured the name of B. in blank, wrote a promissory note oq the other side, in favor of C. or order, who indorsed it under B.'s name, and then D. indorsed it, and A. procured it to be discounted. Held, that B. was an indorser and not a joint promisor. Greenough V. Smead, 3 Ohio, 415. One who writes his name on the back of a note before delivery can be charged as indorser only and not as joint maker; and that though the note was given for his debt. Heath v. Van Cott, 9 Wisconsin, 516. The in- dorsement, in blank, of a negotiable note before its delivery to the payee, by one not a party to it, renders such indorser liable to the payee on proof of non-payment on presentment and due notice. Waterbury v. Sinclair, 26 Barbour, 455. When a note was indorsed by strangers before it was delivered to the payee, they were 262 OF THE TRANSFER OF BILLS AND NOTES. Therefore, where three persons separately indorsed a hill for the accommodation of the drawer, which was afterwards dishonored and returned to them, and they paid the amount among them, it was held that they might bring a joint action against a previous indorser.(p) But where a bill of exchange was, by the direction of the payee, indorsed in blank, and delivered to A., B. & Co., who were bankers, on the account of the estate of an insolvent, which was vested in trustees for the benefit of his creditors, Lord JBllenborough held, that A. and B., two of the members of this firm, and also trustees, could not, conjointly with another trustee who was not a member of the firm^ maintain an action against the indorser, without some evidence of the transfer of the bill to them, as trustees, by the firm, by delivery or otherwise.(g') An indorsement in full, besides the signature of the indorser, expresses in whose favor the indorsement is made. Thus, an indorsement in full by A. B. is in this form: "Pay Mr. C. D., or order. A. B." The signature of the indorser being subscribed to the direction, its effect is to make the instrument payable to C. D. or his order only; and, accordingly, C. D. cannot transfer it other- wise than by indorsement. The omission of the words, "or order" is not material in a special indorsement ; for the indorsee takes it {j>) Low V. Copestake, 3 C. & P. 300 (14 E. 0. L. E.). \q\ Machell v. Kinnear, 1 Stark. 499 (2 E. C. L. B.). held liable as Joint indorsers. Rey v. Simpson, 22 Howard (S. C), 341. When a negotiable note is indorsed by one not a party to it, the presumption is that he indorsed for the accommodation of the prior parties, and no liability would attach to him so long as the note remains in the hands of the payee. SchoUenberger t. Nehf, 4 Casey, 189 ; Barto v. Schmeck, Ibid. 44t. A third person who indorses a promissory note before the payee is not responsible to the payee on such indorse- ment alone. Smith's Adm'r v. Kessler, 8>Wright, 142. If a note, purporting to be joint and several, be signed by one person on its face, and by 'two others, neither of whom is the payee, on the back, the latter axs primS, facie to be treated as indorsers and not as joint makers. Guldin v. Linderman, 10 Casey, 58. When a check is dra,wn by A. payable to the order of B., and is then indorsed by C, the legal intend- ment is that C. only meant to become liable as a second indorser. Lester T. Paine, 39 Barbour, 616. A party writing his name on the back of a note for the accom- modation of the maker, but not appearing upon its face, is liable to the payee as indorser. Moore v. Cross, 19 New York, 22'7. See Hahn v. Hull, 4 E. D. Smith, 664. Indorsement by a stranger intending to be surety, held that it bound him to payment in case of default of the maker, provided there was due demand and notice. Moore t. Cross, 23 Barbour, 534. OF THE TEANSFBK, OF BILLS AND NOTES. 263 with all its incidents, and, among the rest, with its negotiable quality, if it were originally made payable to order.(r) *If a bill be once indorsed in blank, though afterwards r*j45-] indorsed in full, it will still, as against the drawer, the payee, the acceptor, the blank endorser, and all indorsers before him, be payable to bearer •,(s) though, as against the special indorser himself, title must be made through his indorsee. It is not essential to tlie validity of these written transfers, " though called indorsements, that they be on the back ; they may be on the face of a bill of exchange or promissory note.(*)(l) There is no legal limit to the number of indorsements, and if there be not room to write them all distinctly on the back of the bill, the supernumerary indorsements may be written on a slip of paper annexed to the bill-, called, in French, an " allonge."{2) The allonge is thenceforth part of the bill, and requires no additional stamp. A misspelling will not necessarily avoid an indorsement. (m) If two persons, not being partners, are payees of a bill or note, both must indorse. (a;)(3) {r) Moore v. Manning, Com. Eep. 311 ; Acheson v. Fountain, 1 Stra. 557 ; Edie v. East India Company, 2 Burr. 1216; 1 W. Bl. 295, s. c. ; Cunlifife v. Whitehead, 3 Bing. N. C. 829 (32 B. C. L. R.) ; 5 Scott, 31 ; 6 Dowl. 63, s. 0. ; Gay v. Lander, 6 0. B. 336 (60 B. C. L. R.). («) Smith V. Clarke, Peake, 225 ; Walker v. M'Donald, 2 Exch. 527 ; 17 L. J., Exch. 3''7, s. 0. (() Reg. V. Bigge, 1 Stra. 18 ; Ex parte Yates, 27 L. J., Bkcy. 9 ; Tarborough t. Bank of England, 16 East, 6. ^ («) See Leonard v. Wilson, 2 0. & M. 589 ; 4 Tyr. 415, s. 0. {x) Carvick v. Vickery, 2 Doug. 653, n. ; see ante, as to indorsements by expart- ners, and by coexecutora. (1) Herring v. Woodhull, 29 Illinois, 92. It matters not where the maker or in- dorsers sign, so it appear from the note what their respective liabilities are. Quin V. Sterne, 26 Georgia, 223. (2) French v. Turner, 15 Indiana, 59. (3) See Snelling v. Boyd, 5 Monroe, 172. Though the indorsement of a bill by one partner in his own name does not pass the legal title, yet as each partner has the complete jus disponmdi thereof, the transfer passes the entire equitable right. Alabama Co. t. Brainard, 35 Alabama, 476. 264 OP THE TRANSFER OP BILLS AND NOTES. The indorsee may convert a blank indorsement into a special one in his own favor, by superscribing the necessary words. C. having a bill payable to himself, or order, indorsed it in blank, leaving a vacant space. above, and sent it to J. S., his friend, who got it accepted: but the money not being paid, C. brought an action against the acceptor, and it was objected that the action should have been brought by J. S. But, per Holt, C. J. : " J. S. had it in his power to act either as servant or assignee. If he had filled up the blank space, making the bill payable to him, as he might have done if he would, that would have witnessed his election to receive it as indorsee. "(^) The indorsee may also convert the blank indorsement into a special one in favor of a stranger, by super- r*14fi1 scribing above the indorsement the *words "Pay A. B. or order :'' arid, "if he transfer the bill in that way instead of indorsing, he is not liable as indorser.(2)(l) Neither indorsement nor ^accpptance(a) are complete before delivery of the bill. Where A. specially indorsed certain bills to B., sealed them up in a parcel, and. left them in charge with his own (y) Clarke t. Pigott, 12 Mod. 193 ; 1 Salk. 126, s. 0. (z) Vincent v. Horlock, 1 Camp. 442. (o) Cox T. Troy, 5 B. & Aid. 474 (7 E. C. L. R.) ; 1 D. & Ry. 38, s. o. ; Chapman V. Cotterell, 34 L. J., Exoh. 18C. (1) Where there are several blank indorsements, the holder may fill up the first one of them to himself, or may deduce his title through all of them. Cole v. Cushing, 8 Pick. 48 ; Emerson v. Cutts, 12 Mass. 78 ; Ellsworth v. Brewer, 11 Pick. 316. The holder of a note filled up a blank indorsement, directing payment to be made to a particular person, merely for the purpose of collection, and the agent returned the note with the protest for non-payment to such holder. Held, that he might strike out the special indorsement, and make it payable to himself, so as to bring the action in his own name against the indorser. Bank of Utica v. Smith, 18 Johns. 230. The holder of a promissory note indorsed in blank may fill it up with any con- tract consistent with the character of an indorsement. Mitchell v. Culver, 7 Cowen, 336; Rikerv. Cosby, 2 Penn 911; Kiersted v. Rogers, 6 Har. & Johns. 282; Hun- gerford v. Thomson, Kirby, 393 ; Rees v. Bank, 5 Rand. 326 ; LoTell T. Evertson, 11 Johns. 52; Hunter v. Hempstead, 1 Missouri, 67 ,v Moies v. Bird, U Mass. 436 ; Tenney v. Prince, 4 Pick. 385; Nevens v. Degrand, 15 Mass. 436; Leich v. Hill, 4 Watts, 448; Clawson v. Gustin, 2 South. 821; DoUfus v. Frosch, 1 Denio, 367 ; Union Bank v. Oarr, 2 Humph. 345 ; Hubbard v. Williamson, 4 Iredell, 266; Hance V. Miller, 21 Illinois, 636 ; Bean v. Briggs, 1 Clarke; 488. A delivery by the indorser to the indorsee, or that which is equiyalent to such delivery, is necessary. Dann v. Norris, 24 Conn. 333. OP THE TRANSFER OF BILLS AND NOTES. 265 servant to be given to the postman, it was held that the special indorsement did not transfer the property in the bills till delivery, and that delivery to the servant was not sufficient, though it would have been otherwise had the delivery been made to the postman. (6) But where A. and B. carried on business in partnership, and being indebted to C, A. who acted as C.'s agent, with the concurrence of B., indorsed a bill in the name of the firm, and placed it amongst, the securities which he held for C, but no communication of the fact was made to C. It was held to be a good indorsement by the firm to C.(c). Hence the word indorse in the declaration on a bill imports a delivery and transfer to the indorsee, so as to confer title. There- fore, under a traverse of the indorsement the defendant may show that the circumstances were such as that the indorsement did not efi"ect a legal delivery of the bill to the indorsee,(ci) whether the actual delivery were to a third person, or to the indorsee him- self.(e)(l). Thirdly, as to the liability of an indorser. Every indorser of a bill is in the nature of a new drawer ;(/) and is liable to every succeeding holder in default of acceptance or payment by the drawee. An indorser contracts that if the drawee shall not at maturity pay the bill, he, the indorser, will, on receiving due notice of the (b) Rex v. Lambton, 5 Price, 428 ; Adams v. Jones, 4 P. & D. 174; 12 Ad. & El. 455 (40 E. 0. L. R.) ; Brind v. Hampshire, 1 M. & W. 369 ; Bayley on Bills, 6th ed. 137. (c) Lysaght v. Bryant, 9 C. B. 46 (67 E. C. L. R.). {d) Marston v. Allen, 8 M. & W. 493; Adams v. Jones, 12 Ad. & El. 455 (40 E. 0. L. E.) ; Lloyd v. Howard, 20 L. J., Q. B. 1 ; 15 Q. B. 995 (69 E. 0. L. R.), s. 0.; see Robinson v. Little, 18 L. J., Q. B. 29 ; Green v. Steer, 1 Q. B. 707 (41 E. C. L. R.). (e) Bell T. Lord Ingestre, 19 L. J., Q. B. 71; 12 Q. B. 317 (64 E. C. L. R.), s. u. ; and see Barber v. Richards, 6 Excb. 63 ; Lloyd v. Howard, 15 Q. B. 995 (69 B. C. L. R.). (/) Penny v. Innes, 1 C, M. & R. 441 ; 5 Tyrw. 107, s. c; see Allen v. Wallier, 2 M. & W. 317 ; 5 DowL 460 ; 1 M. & W. 44, s. 0. ; see ante, p. 135. (1) Where a note is transferable by indorsement only, the mental incapacity of the indorser will be a defence to the maker as against the indorsee. Peaslee v. Robbins, 3 Metcalf, 164. An erased blank indorsement of the names of the payees of a note is not evidence of a transfer. Williams v. Smith, 21 Missouri, 429. 266 OP THE TRANSFER OB' BILLS AND NOTES. r*1 4.71 "iis^o^o^) P*y t^6 holder the sum which the *drawee ought to have paid, together with such damages as the law pre- scribes or allows as an indemnity. (^) He also contracts, in the case of a bill payable at a future date", that if the drawee refuse to accept on presentment, he will in like manner pay. (A) But a man may indorse a bill without incurring personal respon- sibility in several ways. First, by expressing in his indorsement that it is made with this qualification, that he shall not be liable on default of acceptance or payment by the drawee. Such qualified indorsement will be made by annexing in French the words " sans reeours," or in Eng- lish, "without recourse to me," or any equivalent expression.(»)(l) There may, even without an agreement, be an indorsement which confers title without imposing liability, as in the case of an indorse- ment by an infant ;(A:) of an indorsement by directors of a joint stock company not in such a form as to make the company liable. And if there be a written or even a verbal agreement between an indorser and his immediate indorsee,, that the indorsee shall not (g) Suse V. Pompe, 30 L. J., 0. P. 75 ; 8 0. B., N. S. 538 (98 E. 0. L. R.), s. o. (A) Such also is the indorser's liability as understood in America (Story on Bills, s. 107). (i) The words " at the indorsee's own risk" have been held in America to exclude the personal responsibility of an indorser. See Rice v. Stearns, 3 Mass. Rep. 225 ; Mott V. Hicks, 1 Cowen, 512. {k) Smith T. Johnson, 27 L. J., Exch. 363 ; 3 H. & N. 222, s. c. (1) An indorsement " without recourse," or at the indorsee's " own risk," will not expose the indorser to any liability. Bice v. Stearns, 3 Mass. 225 ; Upham v. Prince, 12 Mass. 14; Richardson v. Lincoln, 5 Metcalf, 201 ; Lawrence v. Dobyn, 30 Mis- souri, 196 ; Fitchburg Bank v. Greenwood, 2 Allen, 434 ; Craft v. Fleming, 10 Wright, 140; Cady T. Shepard, 12 Wisconsin, 639. The indorsee incurs no other obligations than those imposed by the law of the place where the indorsement is made, unless a special indorsement shall subject him to the lex loci where the bill is drawn or made payable. Therefore the indorsee of a bill drawn in a French West Indian island on a house in Bordeaux, payable, a certain number of days after sight, and transferred in New York, need not present it for payment after protest for non-acceptance, notwithstanding the provisions; of the French Commercial Code make a presentment for payment at maturity also necessary. Aymar v. Sheldon, 12 Wendell, 439 ; Allen v. Merchants' Bank, 22 Wendell, 215. OF THE TRANSFER OF BILLS AND NOTES. 267 sue the indorser, but the acceptor only, it has heen held, that such an agreement is a good defence on the part of the indorser against his immediate indorsee suing in breach of the agreement. (Z) Indeed, the contract between indorser and indorsee does not consist exclusively of the writing popularly called an indorsement, though that indorsement bo a necessary part of it. The contract consists partly of the written indorsement, partly of the delivery of the bill to the indorsee, and may also consist partly of the mutual understanding and intention with which the delivery was made by the indorser and received by the indorsee; That intention may be collected from the words of the parties to the contract, either spoken or written, from the usage of the place, or of the *trade, from the course of dealing between the parties, or r*i4Q-| from their relative situation. (w) But though a special contract qualifying the ordinary liability of an indorser may affect the rights of the immediate indorsee, and those who stand merely on his title, it is plain that it cannot re- strain the rights of subsequent transferees for value without notice. A party transferring a bill may also (as we have just seen) de- cline personal responsibility, by converting an existing blank in- dorsement into a special one in favor of his transferee. (n) A bill may be indorsed conditionally, so as to impose on the drawee, who afterwards accepts, a liability to pay the bill to the indorsee or his transferees in a particular event only. Where a bill was indorsed on such a condition by the payee, afterwards accepted, then passed through several hands, and was finally paid by the acceptor before the Condition was satisfied, it was held that the acceptor was liable to pay the bill again to the payee.(o) But it seems that a bill cannot be indorsed with a condition that in a certain event the indorsee shall not retain the power of further (Z) Pike V. Street, 1 M. & M. 226; 1 Dans. & L. 159, s. o. ; and see Clark v. Pigott, 1 Salk. 126 ; 12 Mod. 192, s. o. ; Goupy v. Harden, T Taunt. 1.59 ; Scares v. Glyn, post; see also Thompson v. Clubly, 1 M. & W. 212 ; Bylgs on Bills, 4tli American edition, 214. (m) Kidson v. Dilworth, 5 Price, 564; Castrique v. Battigieg, 10 Moore, P. 0. Cases, 94. (n) As to the liability of an indorser, after non-payment, by the drawee, see post. (o) Robertson t. Kensington, 4 Taunt. 30 ; Savage v. Aldren, 2 Stark. 232 (3 E. C. L. R). 268 OF THE TRANSFER OF BILLS AND NOTES. indorsing dver.(p) And it is clear that parol evidence, or evidence of intention, cannot be allowed to engraft such a condition, so as to affect the title of subsequent holders for value without notice.(g') An indorsement admits the signature and capacity of every prior party. (r) And. in an action against an indorser the defendant will not be allowed to plead denying the indorsement to himself.(s) *The striking out an indorsement by mistake will not r*149"l • • L J discharge the indorser,(i) but the striking it out by design will.(M) , Where, in an action by a remote indorsee against the acceptor, if traversed, several indorsements are stated in the de- claration, though unnecessarily, they must, in strictness, all be proved,(a:) unless the defendant has, by his conduct, admitted them.(^) But the plaintiff may omit to state in his declaration all the indorsements after the first indorsement in blank, and aver that the first blank indorser indorsed immediately to himself. In this case, however, all the intervening indorsements should be struck out.(g) Abbott, C. J. : " All the indorsements must be proved or struck out, although' not stated in the declaration. I re- member Bayley, J., so ruling, and striking them out himself on the trial ; and this need not be done before the trial ;(a) but may be done after the plaintiff has finished his case."(6) So, where the (p) Soares v. Glyn, 14 L. J., Q. B. 313; 8 Q. B. 24 (55 E. C. L. R.), s. 0. (j) la America, also, it has been held that aa indorsement of a note payable on a, contingency does not impede the negotiability of the instrument," though it will operate as notice to subsequent holders. Byles on Bills, 4th American edition, 222. (r) Lambert v. Oakes, 1 Lord Rajm. 443 j 12 Mod. 244 ; Lambert y. Paclc, 1 Salic. 127; Williams v. Seagrove, 2 Barnard, 82; Crichlow f. Parry, 2 Camp. 183 ; Free V. Hawkins, Holt, N. P. R. 550 ; Macgregor v. Rhodes, 25 L. J., Q. B. 318 ; but see East India Company v. Tritton, 3 B. & C. 280 (10 E. C. L. R.) ; 5 D. & R. 214, s. c. (») Macgregor v. Rhodes, 25 L. J., Q. B. 318 ; 6 E. & B. 266 (88 E. 0. L. R.), S. 0. ((] Wilkinson v. Johnson, 3 B. & C. 428 ; 5 D. & R. 403, s. o. Nor the striking out by mistake of the acceptance. Raper v. Birkbeck, 16 East, 17; Novelli v. Rossi, ^ B. & a3. 757 (22 B. C. L. R.). (m) Fairclongh v. Pavia, 9 Bxch. 690. (s) Waynam v. Bend, 1 Camp. 175. (y) Bosanquet t. Anderson, 6 Bsp, 43 ; Sidford v. Chambers, 1 Stark. 326 (2 E. C. L. R.). ' ' ■ (z) In an action against an indoi'ser, the plaintiff has no right to strike out in- dorsements prior to the defendant's, for they constitute the defendant's title to in- demnity. Byles on Bills, 4th American edition, 219. (a) Cocks V. Barradale, Chitty, 642, 9th ed. (i) Mayer v. Jadis, 1 M. & Rob. 247. OF THE TKANSPBR OF BILLS AND NOTES. 269 action is against an indorser, and there are several indorsements between the payee's indorsement and the defendant's, the plaintiff may state in his declaration that the payee indorsed to the defend- ant, (c) It was formerly, therefore, usual' in an action on a bill where there were several indorsements, to insert two counts ; one setting out the indorsements, to avoid the necessity of striking them out ; the other omitting them, so as to prevent a nonsuit if they could not be proved. But the wise and ample provisions of the Common Law Procedure Act, as to amendments, now enable a plaintiff to declare safely in a general form, without sti'iking out indorsements, which act may be attended with risk in many cases. It seems doubtful whether the plaintiff can avail himself of the title of an indorser whose name he has struck out.(c^)(l) Fourthly, as to the rights of an indorsee. A transfer by (c) Chaters t. Bell, 4 Esp. 210 ; Selw. 306, 9th ed., s. c. (rf) Daries v. Dodd, 1 Wils. Exch. 110 ; 4 Price, 176, s. 0. ; and see Bartlett v. Benson, 15 L. J., Exch. 23 ; 3 D. & L. 2li ; 14 M. & W. 733, s 0. (1) In an action by the holder of a note against an indorser, the plaintiff cannot be permitted to strike out the name of any indorser prior to the defendant. Curry V. Bank of Mobile, 8 Porter, 360. When a bill is returned to the first indorser after protest, he may strike out his indorsement though it be in full, and maintain an action in his own name. Dugan v. United States, 3 Wheat. 183 ; United States v. Barker, Paine, 156; Picquet t. Curtis, ,1 Sumner, 480. A holder of a bill, with several indorsements in blank, may strike out all the iudorsers' names after the first, and write over the first indorser's name an assignment to hims,elf. Ritchie v. Moore, 5 Mumford, 388; Craig v. Brown, Peters, C. C. Eep. 171; Bell v. Morehead, 3 Marsh. 158. As to striking out indorsements, see ^farks v. Brown, 16 Illinois, 454; Pilkington T. Woods, 10 Indiana, 432 ; Bowles v. Wright, 34 Mississippi, 409; Moore v. Maple, 25 Illinois, 341. Holder may strike out his own- indorsement in full. Witherell v. Ela, 42 New Hampshire, 295 ; French v. Jarvls, 29 Conn. 347 ; Mendenhall v. Banks, 16 Indiana, 284. The plaintiff being the payee and in possession, will be presumed to be rightfully so, and the indorsements on the back will be taken to have been properly erased. Goddard v. Cunningham, 6 Clarke, 400. When the plaintiff is the payee of the notei sued on, he may strike out the special indorsement, and is not bound to show a transfer back to himself. Cooper v. Cooper, 14 Louisiana Annual, 665. The holder of a note, specially indorsed to another person, has no right to strike out the name of that person and insert his own. Porter v. Cushman, 19 Illinois, 572. But see also Ferguson v. Fisk, 28 Conn. 501 ; Naglee v. Lyman, 14 California, 450. As to filling up blank indorsements. Watkins v. Kirkpatrick, 2 Butcher, 84 ; Webster v. Cobb, 17 Illinois, 459. The holder cannot write a guar- antee over the name of an indorser in blank. Clouston v. Barbiere, 4 Sneed, 336. The plaintiff cannot be required to ifiU up blank indorsements on the trial. Green- ough V. Smead, 3 Ohio (N. S.), 416. 270 OF THE TEANSFBE OF BILLS AND NOTES, *indorsements Vests in the indorsee a right of action '- J against all the parties whose names are on the bill, in case of default of acceptance or payment ; and we have already seen, (e) that against an innocent indorsee for value, no prior party can set up the defence of fraud, duress, or absence of consideration. But, if the payee of a bill payable to order neglect to indorse, the holder has no remedy in his own name against any person but him from whom he received it.(l) If a man have delivered a bill, without indorsing it, where it was upon good consideration agreed or understood that it should be in- dorsed by him, and afterwards he refuse to indorse, an action may be maintained against him for so refusing. (/) He, or his personal representatives, may also be compelled by bill in equity to in- dorse.(^) But the transferee of an unindorsed bill has no right to sign his transferer's name as indorser.(A) Nor can he obtain a ' good title by an indorsement written after notice to him of a fraud. («') If a bill be re-indorsed to a previous indorser, he has, in general, no remedy against the intermediate parties, for they would have their remedy over against him, and the result of the actions would be, to place the parties in precisely the same situation as before any action at all.(y) But where a holder has previously indorsed, and the subsequent intermediate indorser has no right of action or remedy on that previous indorsement against the holder, there are cases in which the holder may sue the intermediate indorser,.(A) (c) Chapter on Consideration. (/) Rose T. Sims, 1 B. & Ad. 521 (20 E. L. 0. R.). Iff) Watkins v. Maule, 2 Jac. & Walker, 242 ; Smith v. Pickery, Peaks, 50 ; Rol- lestou T. Hibbert, 3 T. R. 411 ; Ex parte Rhodes, 3 Mont. & Ayr. 21V ; Ex parte Greening, 13 Ves. 206; Edge v. Romford, 31 L. J., Ch. 805; 31 Beav. 247, s. o. (A) Harrop-v. Fisher, 30~L. J., C. P. 283 ; and see Moxon v. Pulling, 4 Camj). 50; Story on Bills of Exchange, s. 201 ; Rose v. Sims, IB & Ad. 521 (20 E. C. L. R.). (i) Whistler v. Fowler, 14 0. B., N. S. 248 (108 E. C. L. R.) ; 32 L. J., 0. P. 161. (J) Bishop V. Hay ward, 4 T. R. 470; Britten v. Webb, 2 B. & 0. 483 (9 E. C. L. R.) ; 3 D. & R. 650, s. 0. (k) Wilders v. Stevens, 15 L. J., Exch. 108 ; 15 M. & W. 208, s. o. ; Williams T. (1) The purchaser of a negotiable promissory note not indorsed by the payee, has only an equitable interest therein ; and an action upon the same must be brought in the name of the payee. Freeman v. Perry, 22 Connecticut, 617. OF THE TRANSFER OF BILLS AND NOTES. 271 And if the plaintiff declare, as he may do, on an indorsement from the first blank indorser to himself, it will, it seems, be intended that he means to rely on his first title, and it is *doubtful whether he can reply any facts arising on the intervening •- -■ indorsements without a departure.(Z)(l) But where a bill or note is merely indorsed to another, and deposited with him as a trustee, he can only use it in conformity with the stipulations on which he became the depositary of it.(m) If the depositary of the bill indorse it over in breach of trust, the indorsee, with notice of the breach of trust, can acquire no title to the bill as against the rightful owner, and can neither sue him on the bill, nor hold the bill against him.(w) Therefore, where the acceptor of a bill, who had received no value, delivered the bill to the drawer, desiring him to hold it for his use, but the drawer indorsed it for value to the defendant, who knew that the drawer had no authority to part with it, the defendant, the indorsee, was ' held liable to the acceptor in trover. "The drawer," says Lord Tenterden, " having put the bill into the defendant's hands, when the defendant knew that the drawer had no authority so to do, the Clarke, 16 M. & W. 834; Smith v. Marsack, 18 L. J., C. P. 65 ; 6 0. B. 486 (60 B. C. L. R.), s. 0. ; Morris v. Walker, 19 L. J., Q. B. 400 ; 15 Q. B. 589 (69 B. 0. L. R.), s. 0. And to reply the facts is no departure. Ibid., and Story on Promissory Notes, s. i19. . {I) Bartlett v. Benson, 15 L. J., Exch. 23 ; 14 M. & W. 733, s. c. (m) As to the consideration where the bill is deposited as security for the balance of a running account, see ante. Consideration. (n) Goggerly v. Cuthbert, 2 N. R. 170. If the acceptor be compelled to pay he may sue the depositary. Bleaden v. Charles, 1 Bing. 246 (20 B. C. L. R.) ; and see Osborn v. Donald, 12 W. R. 839. (1) It is competent for an indorser of a note on again coming into possession of the note to maintain an action thereon, without prodacing extrinsic proof of owner- ship. Earbee v. Wolf, 9 Porter, 366. See Welch t. Linds, 1 Cranch, 159 ; Dngan V. The U. S., 3 Wheaton, 172. "After an examination of the cases on this subject (which cannot all of them be reconciled) the court is of opinion, that if any person who indorses a bill of exchange to another, whether for value or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bond fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more in- dorsements in full subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsers, whose names he may strike from the bill or not, as he may think proper." Ibid. Per Livingston, J. See Bond v. Storrs, 13 Conn. 412. 272 OF THE TRANSFER OF BILLS AND NOTES, defendant's title is no better than the drawer's. But then, it is said, allowing that the plaintiff had a property in the bill, the defendant had a right to hold it, because he may sue the drawer. . I think the defendant had no right to hold it as against the acceptor, the plaintiff, because the defendant took the bill with the knowledge that the person from whom he took it had no title to it as against the plaintiff."(o) So where the drawer of a bill of exchange deposited it with a creditor, and gave him authority to receive the proceeds and apply them in a specified way, and the drawer afterwards committed an act of bankruptcy, on which a commission issued, the creditor having, after the act of bankruptcy, delivered the original bill to the acceptor, and taken in lieu of it another bill, it was held by Tindal, C. J., that the creditor had been guilty of a conversion, and the assignees of the bankrupt might recover against him in trover. (p) But it would have been otherwise, if the creditor had merely received the money, for that would not have amounted to a r*T c.-n conversion. (g') Where a bill has been indorsed in blank, *and the transferee of the depositary takes it without knowledge of the particular and limited purpose for which the bill was deposited with the trustee, the transferee acquires a title ;(»•) and the transferee's title will not now be affected by proving' him guilty of negligence, however gross, if there were no fraud. Gross negligence may, however, be evidence of fraud. (s) And it is con- ceived, that if the bill had not become payable to bearer, but was transferable only by indorsement of the trustee, an indorsement by him in breach of trust to an indorsee for value, and without notice, would in general confer a title. The trust may be expressed on the bill itself by a restrictive indorsement, or a restrictive direction appended to the payee's (o) Evans v. Kymer, 1 B. & Ad. 528 (20 E. C. L. R.). (p) Robson T. Rolls, 1 M. & Rob. 239. (j) Jones V. Fort, 9 B. & C. 764 (8 E. C. L. R.) ; 4 M. & Ry. 5i1,'a. 0. (r) Bolton v. Puller, 1 B. & P. 539 ; Ramsbottom t. Gator, 1 Stark. 228 (2 B. C. L. R.) ; Colling v. Martin, 1 B. & P. 648 ; Gorgier v. Mieville, 3 B. & C. 45 (10 B. 0. L. B.) ; 4 D. & R. 641, s. c. ; Wookey v. Pole, 4 B. & A. 1 (6 E. C. L. R.) ; and see Roberta v. Eden, 1 B. & P. 398. («) Goodman v. Harvey, 4 Ad. & B. 8T0 (31 E. 0. L. R.) ; 6 N. & M. 372, s. o. . Uther V. Rich, 10 Ad. & B. 784 (37 E. 0. L. R.) ; 2 Per. & D. 579, so. OF THE TRANSFBE OF BILLS AND NOTES. 273 name, so that, 'into whose hands soever the bill may travel, it will carry a trust on the face of it.(i)(l) The following have been held to be restrictive directions or indorsements : — " The within must be credited to A. B."(m) "Pay to A. B. or order, for my use;" " Pay to A. B. for my account;" "Pay to A. B. only." But the words, "Value in account witt the Oriental Bank," have been held not to be a restrictive indorse- ment.(a;) A man who takes a bill, the circulation of which beyond the restricted indorsee has been restrained by a restrictive direction or indorsement, cannot sue the drawer or acceptor upon it, but holds the bill or-the money received by him as the trustee of the restrain- ing party, and is liable to refund the bill or money received upon it to the party making the restrictive indorsement. For such words cannot be intended as a mere private direction to the immediate indorsee; seeing that he, is bound to account for the bill without any such directions not to mention that the most obvious mode of conveying a private direction, would be either by oral communica- tion, or by a letter enveloping the bill. Nor can they *be r*-icQ-] a mere direction to the drawee not to pay the original re- stricted indorsee : for a restricted indorsement constitutes the restricted indorsee the indorser's agent to receive the money, and for its misapplication, when so paid, the drawee is not responsible. As between the restraining indorser, therefore, the immediate indorsee, and the drawee, the words "io my use," or the like, are of no effect. But as between the restraining indorser and a subse- quent indorser, and the drawee, they are a notification that the restricted indorsee has no property in the bill, that he is a mere trustee for his principal, and that he can appoint no sub-agent, (() Such restrictive indorsements are not of very late invention, but they appear to have been well known before the middle of the last century. Snee v. Prescot, 1 Atk. 247 ; Edie v. East India Company, 2 Burr. 1227 ; 1 W. BI. 295, s. 0. («) Ancher v. Bank of England, Doug. 637 ; Edie v. East India Company, 2 Burr. 1227 ; Evans v. Cramlington, Carthew, 5 ; Cramlington v. Evans, 2 Vent. 307, s. c; Treuttel v. Barandon, 8 Taunt. 100 (4 E. C. L. R.) ; 1 Moore, 543, s. 0. {x) Murrow v. Stuart, 8 Moore, P. 0. Cases, 267. (1) The payee of a note can restrain its negotiability, but a subsequent indorser can revive its negotiable quality. Holmes v. Hooper, 1 Bay, 160. An indorsement, at the time of making a promissory note, rendering it payable on a contingency, does not effect its negotiability ; it is notice of the consideration to a subsequent holder. Tappan v. Ely, 15 Wend. 362. 18 274 OF THE TRANSFER OF BILLS AND NOTES. except for the purpose of holding the bill or money upon a similar trust. The subsequent indorsee, therefore, being a mere agent, can have no action, on. the bill if it is dishonored, nor hold it, or the money received upon it, against the principal : and if, instead of paying the money to the principal he chooses to p.iy it to the inter- mediate agent, he becomes responsible for its misapplication, and so does any one who pays it to him. A bill was indorsed by the payee in this form : — " Pay A. B., or order, for the account of 0. D. ;" A. B. pledged it with the defendant, who advanced money upon it to A. B. personally. Held, that the defendant had suflBcient notice, from the indorse- ment, that A. B. had no authority to raise money on the bill for his own benefit, and, therefore, could not defend an action of trover for the bill, brought by C. D., his principal. (^) A., a merchant at Boston, in New England, remitted a bill to B., his agent in London, indorsing it in this form : — " Pay B., or Ms order, for my use." B. discounted it with his bankers; he afterwards failed, aud the bankers, to whom he was indebted in more than the amount of the bill, received payment of it at ma- turity from the acceptors. Held, in an action for money had and received, that the bankers were liable to refund the money to A.(z) We have already seen that the omission of the words " or order," in a special indorsement, will not restrain the negotiability of a bill.(a) Fifthly. As to the liability of a person transferring by delivery only. *A transfer by mere delivery, without indorsement, of ■- -la bill of exchange or promissory note made or become payable to bearer, does not render the transferer lia,ble on the in- strument to the transferee. And it is conceived to be the general rule of the English(J) law, (y Treuttel v. Baraudon, 8 Tauat. 100 (4 B. 0. L. R.) ; 1 Moore, 543, s. c. (z) Sigourney v. Lloyd, 8B; & C. 622 (15 E. 0. L.R.) ; affirmed In the Exchequer Chamber, 6 Bing. 525 (15 E. 0. L. R.) ; 3 Y. & J. 220, s. 0. (ffl) Moore v. Manning, Com. 3U ; Acheson v. Fountain, I Stra. 557; Edie v. East India Company, 2 Burr. 1216 ; 1 W. Bl. 295, s. o. (6) In America also it has been repeatedly held, that payment in bank notes after the bank has failed, the fact being unknown both to payer and receiver, is good, and OF THE TRANSFER OF BILLS AND NOTES. 275 and the fair result of the English authoritifis, that the transferer is not even liable to refund the consideration, if the bill or note so transferred by delivery without indorsement turn out to be of no value, by reason of the failure of the other parties to it. For the taking to market of a bill or note payable to bearer without in- dorsing it, is primd facie a sale of the bill. And there is no im- plied guarantee of the solvency of the maker, or of any other party, (c) If a bill or note, made or become payable to bearer, be delivered without indorsement, not in payment of a pre-existing debt, but by way of exchange for goods, for other bills or notes, or for nfoney transferred to the party delivering the bill at the same time, such a transaction has been repeatedly held to be a sale of the bill by the partytransferring it, and a purchase of the instru- ment, with all risks, by the transferee. " It is extremely clear," says Lord Kenyon, " thaj;, if the holder of a bill send it to market without indorsing his name upon it, neither morality nor the laws of this country will compel him to refund the money for which he sold it, if he did not know at the time that it was not a good bill,"(d) So, where A. gave a bankrupt, before his bankruptcy, cash for a bill, but refused to allow the bankrupt to indorse it, thinking it better without his name, and afterwards, on dishonor of the bill, proved the amount *under the commission, the Lord Chancellor ordered the debt to be expunged, observ- '- ^ ing, that this was a sale of the bill.(e) So, if a party discounts bills with a banker, and receives in part of the discount other bills, but not indorsed by the banker, which bills turn out tb be bad, the the loss falls on. the receiTer. Bayard t. Shunk, 1 Watts & Serg. 92 '; Young v. Adams, 6 Mass. 182-185; Scruggs v. Gass, 8 Yerger, 175; Lowry.T. Murrell, 2 Porter, 282. The contrary, howeyer, has been also held. Lightbody V. Ontario Bank, 11 Wend. 1 ; affirmed on error in 13 Wend. 107; Ha,rley v. Thornton, 2 Hill, 509; Fogg V. Sawyer, 9 New Ham. 365 ; see Story on Promissory Notes, 125. It is conceived that the confusion has arisen from neglecting to distinguish between the abstract question of law and questions of fact in the particular case. (c) See the observations of Littledale J., in Camidge v. AUenby, 6 B. & 0. 373 (13 B. C. L. R.), and Rogers v. Langford, 1 0. & M. 637, 642. See also the obser- rations of Mr. Baron Bramwell, delivering the judgment of the Court of Exchequer, in Guardians of the Lichfield Union v. Greene, 26 L. J. 140 ; 1 H. & N. 884, s. o. (d) Penn t. Harrison, 3 T. R. 759 ; and see Evans v. Whyle, 5 Bing. 485 (15 E. C. L. R.) ; 3 M. & P. 130, s. 0. (e) Ex parte Shuttleworth, 3 Ves. 368. 276 OF THE TRANSFER OF BILLS AND NOTES. banker is not liable. " Having taten them without indorsement," says Lord Kenyon, " he has taken the risk on himself. The bankers were the holders of the bills, and, by not indorsing them, have refused to pledge their credit to their validity ; and the trans- feree must be taken to have received them on their own credit only."(/) So, where, in the morning, A. sold B. a quantity of corn ; and, at three o'clock in the afternoon of the same day, B. ' delivered to A. in payment certain promissory notes of the bank of C, which had then stopped 'payment, but which circumstance was not at the time known to either party, Bayley, J., said, " If the notes had been given to A. at the time when the corn was sold, he could have had no remedy upon them against B. A. might have insisted on payment in money, but, if he consented to receive the notes as money, they would have been taken by him at his peril-'X^-) _ * Such seems the general rule governing the transfer by delivery, not only of ordinary bills of exchange and promissory notes, but also of bank notes.(A) Nor is there any hardship in such a rule, for the remedy against the transferer may always be preserved by indorsement, or by special contract. The rule, however, is not without exceptions. If a banker's note be given on account of a pre-existing debt, the note is not to be considered as sold.(«) But if the banker fail and if the note be duly presented, and due notice be given of the dishonor, the remedy for the antecedent *debt revives. r*1561 L J "I agree," says Holt, C. J., "the difference taken by my brother Darnell, that taking a note for goods sold is a payment, (/) Fydell v. Clark, 1 Esp. 447 ; Bank of England v. Newman, 1 Ld. Eaym. 442 j 12 Mod. 241 ; Com. 5T ; Emly t. ,Lye, 15 East, 7. But in Ex parte Blackburne, 10 Vea. 204, the Chancellor seemed to think, that, if goods are purchased and paid for at the time by bills not indorsed, the vendee is liable, if the bills turn out bad. See Jones V. Eyde, 5 Taunt. 487 (1 E. C. L. R.) ; 1 Marsh. 157, s. o. ; Owenson v. Morse, 7 T. E. 64. (g) Camidge v. AUenby, 6 B. & C. 373 (13 B. 0. L. R.) ; 9 D. & R. 391, s. o. ; see Robson V. Oliver, 10 Q. B. 704 (59 E. C. L. R.) ; and see Ward v. Evans, 2 Ld. Raym. 928, and Rogers y. Langford, 1 0. & M. 637. (A) Though they be country bank notes, issued by the payer himself, when the question arises in faveir of sureties. Guardians of Lichfield Union v. Greene, 26 L. J., Bxch. 140 ; 1 H. & N. 884, g. c. (i) See as to this exception, however, the language of Lord Campbell, in Tim- mins v. Gibbins, infra. OF THE TKAKSFER OF BILLS AND NOTES. 277 because it was a part of the original contract, but paper is no pay- ment where there is a precedent debt. For when such a note is . given in payment, it is always taken to be given under this con- dition to be payment, if the money be paid thereon in convenient time."(y) The principle of the exception may be this. A creditor is entitled to cash*. If, instead of cash, he consent to take notes, not being a legal tender, that is a favor to the debtor, and it will thence be inferred, in the absence of evidence to the contrary, that the notes were not to be payment, if, without the fault of the creditor, they turn out to be of no value. And it is conceived, that as an express contract would make the transferer liable without indorsement, so there are other circum- stances from which a jury may infer that the intention, and impUec^ contract of the parties was, that the notes were not to be pay- ment, if dishonored. (A) If, for example, a man ask another to change a bank note for him as a favor, and the banker fail, it is conceived that a jury would be justified in inferring an implied contract to refund the change, if the note were duly presented and dishonored, and due notice given ;[l) and it has been held that if a customer pay to his account with his banker notes of a bank which has failed, and the banker is guilty of no laches, the loss falls on the custbmer.(m) And if a banker cashes a check on another bank which has failed, he may recover back his money. (w) In all cases where the receiver of the notes seeks to return them he must do so within a reason- able time.(o) {J) Ward T. Evans, 2 Ld. Raym. 928; Camidge v. AUenby, 6 B. & 0. 373 (13 E. C. L. E.). So held also by Pratt, 0. J., in Moore v. Warren, 1 Stra. 415, and by King, C. J., in Holme v. Barry, 1 Stra. 4lS. In the case of a pro-existing debt paid by notes, if the notes be not paid, and the debtor is held liable, there is no doubt as to the original debt for which he is so liable, and there is no need to inrent or imply any contract to make out that debt. But where goods are exchanged against money, if the payer is held liable, it is difficult to imply a contract for goods sold and delivered, to be paid for on request. (4) See Tan Wart v. Woolley, 3 B. & 0. 446 (10 B. 0. L. R.), and post, Ch. xxii- There is no warranty that the stanip on a foreign bill has been cancelled. Pooley V. Browne, 11 C. B., N. S. 566 (103 E. C. L. R.). {I) See Rogers v. Langford, 1 0. & M. 637 ; Turner v. Stones, 1 D. & L. 122 ; Ex parte Isbester, 1 Rose, 2 J ; Woodland t. Fear, 7 B. & B. 522 (90 E. C. L, R ) (m) Timmin? v. Gibbins, 18 Q. B. 722 (83 B. S. L. R.). ' («) Woodland v. Fear, 26 L. J., Q. B. 202,; 7 B. & B. 519 (90 E. C.L. E.), a. o. (o) See Rogers v. Langford, 1 0. & M. 642. 278 OF THE TRANSFER OF BILLS AND NOTES. r*1 fMl *Tlie sellers of bills on the London market do not, prmd facie, trust the foreign principal of the English buyer;(^) A transferer, by delivery, though he does not impliedly warrant the solvency of the parties to a promissory note or bill of exchange, does warrant that the bill or note is not forged' or fictitious.(g')(l) And if the bill or note does not in this respect fully answer the warranty (though some signatures be genuine), yet the considera- ition entirely fails, and the money given for the bill may be recovered back,(r) provided it be claimed in a reasonable time.(s) {j>) Poirier v. Morris, 2 B. & B. 103 (75 E. C. L. R.). (?) Jones V. Ryde, 5 Taunt. 48Y (1 B. C. L. R.); 1 Marsh. 157, a. c; Young y. Cole, 3 Bing. N. C. 724 (32 E. C. L. R.) ; Bruce v. Bruce, 1 Marsh. 165; 5 Taunt. 495 (1 E 0. L. K.) ; Fuller T. Smith, Ryan & M. 49 ; Gurney v. Womersley, 4 B. & B. 133 (82 B. C. L. R.). So it has been repeatedly held in America. Bllis v. Wild, 6 Mass. 321 ; Young v. Adams, ibid. 182 ; Markle v. Hatfield, 2 John. R. 455 ; Eagle Bank of Newhaven T. Smith, 5 Con. R. 71 1 Strange t. Ellison, 2 Bayley, 385 ; though the instrument be sold, Byles on Bills, 4th American edition, 227. Mr. Justice Story lays it down that there is also a warranty of the title of the transferer. Treatise on Promissory Notes, p. 1 23. But it is conceived that this is not so Indeed, an honest transferee by delivery needs no such warranty. See further as to transfer of a forged or altered bill, the Chapters on Forgery and Alteration. He also warrants that a bill purporting to be a foreign bill, and therefore not to require a stamp, was really made abroad. Gompertz v. Bartlett, 23 L. J., Q. B. 65 ; 2 B. & B. 854 (75 B. 0. L. R.),s. 0. (r) In re Barrington, 2 Sch. & Lef. 112. («) Pooley T. Browne, 31 L. J., C. P. 1'35.. (1) The doctrine of implied warranty in sales, applies to the sale of a note : po that one who sells an indorsed note gives an implied warranty that the indorsemeat is a genuine one. Strange v. Ellison, 2 Bailey, 385 ; McNeil y. Knott, 11 Georgia, 142; Swanzey v. Parker, 14 Wright, 441 ; Thompson v. McCuUough, 31 Missouri, 224 ; Terry v. Bissell, 2fi Conn. 23 ; Aldrich v. Jackson, 5 Rhode Island, 218 ;■ Cabot Bank v. Morton, 4 Gray, 156 ; Lyons T. Divelbis, 10 Harris, 185. An indorsee guarantees the genuineness of the signatures, and the competency to contract of all the prior parties. Ogden v. Blydenburgh, 1 Hilton, 182 ; Erwin v. Downs, 15 New York, 575. There is no implied warranty of the past or future solvency of the maker of a note from a mere exchange of.it, without indorsement, for merchandise. Burgess v. Chapin, 5 Rhode Island, 225; Beekwith v. Farnum, Ibid. 230. Where One sells a check of a third person without communicating to the purchaser the fact, known to the seller, that the maker of the che^k had failed to pay a:nother check presented to him for payment on the day of the sale, he cannot recover upqn a note given in payment for the check. Brown v. Montgomery, 20 New York, 287 ; Long V. Spruill, 1 Jones (Law), 96. Where a party negotiates commercial paper payable to bearer, or under a blank indorsement, he warrants that he has no knowledge of any facts which prove the paper to be worthless. Delaware Bank v. Jarvis, 20 New York, 226; Brown v. Montgomery, Ibid. 287. A party selling a bill is not bound to communicate to the purchaser the fact of the insolvency of the parties to it, even if within his own knowledge. Bartle v. Saunders, 2 Grant's Cases, 199. OF THE TRANSFER OF BILLS AND NOTES. 279 A transferer, by delivery, cannot be liable in any case to a sub- sequent transferee, either on the instrument or the consideration. And therefore it has been held, that such subsequent transferee cannot prove for the value in the event of the first transferer's bankruptcy. (iC) But, in all cases, if notes or bills are transferred as valid, when the transferer knows they are good for nothing, the suppression of the truth is a fraud, and he is liable. "If," continues Mr. Justice Bayley, in the case before referred to, "A. could' show fraud or knowledge of the maker's insolvency in the payer, then it would be wholly immaterial whether the notes were taken at the time of sale or afterwards, "(m) Sixthly, as to the rights of transferee by delivery. Bills and notes payable to bearer circulate as money, and *are considered as such. The hond fide possessor is, there- p^-. rn-, fore, the true owner. Eor it is essential to the currency of money that property and possession should be inseparable, (a;) We have already seen that the indorsee of a bill payable to order, and not made payable to bearer by a blank indorsement, has no right to the bill, either so as to retain it against the real owner, or to sue any party upon it, unless the indorser had a right to indorse.(«/) Whereas, if the check, bill, or note, be originally made or have since duly become payable to bearer, the title of the holder, both as against a former owner on the 'one hand, and against 'the maker, acceptor, or indorser on the other, is not affected by any infirmity in the title of the transferer, provided the holder took it hond fide for value. (1) (t) Gurney v. Womersley, 4 B. & B. 133 (82 B. C. L. R.). («) Camidge v. AUenby, 6 B. & 0. 373 (13 B. 0. h. R.) ; 9 D. & E. 391, a. c; Fenn v. Harrison, 3 T. R. T59. [x) See Foster t. Green, 31 L. J., Exch. 158. {y) Mead t. Young, i T. R. 28. (1) A note payable to A. or bearer, may be negotiated by delivery only, even if indorsed by A. Wilbour v. Turner, 5 Pick. 526 ; Dole v. Weeks, 4 Mass. 451. A note or bill with a seal to it is not a negotiable instrument ; but in Georgia it has been held that a. bond payable to bearer is. Porter v. McOoUum, 15 Georgia, 529 A sealed instrument in the form of a negotiable note is not negotiable. Helper t. Alden,-3 Minnesota, 332. A note under seal is not entitled to days of grace. Skid- more V. Little, 4 Texas, 301. Printed letters " L. S." in brackets is a seal. Giles 280 OF THE TRANSFER OF BILLS AND NOTES. It was formerly considered that the transferee's title would be affected by want of due caution on his part, and that he would be liable in trover to the real owner, and unable to enforce payment against the parties to the instrument, if he were guilty of negli- gence in taking it. Thus, where a banker, in a small market town, changed a 500Z. Bank of England note for a stranger, without any further inquiry than, merely asking his name, he was held liable, in trover, to a party from whom the note had been unlawfully obtained ; Best, 0. J., observing, "The party'^ caution should increase with the amount of the note which he is called upon to change.(«) A man may change a 20Z. note without asking a single question, but would that be right as to one of several thousand ? More caution is required in the case of a discounter than of a payer ."(a) But it is now settled, that if a man takes honestly an instrument made or become payable to bearer, he has a good title to it, with whatever degree of negligence he may have acted, unless his gross negligence induce the jury to find fraud. " I believe," says Lord Denman, " we are all of opinion that gross negligence only would not be a sufficient answer by the defendant where the plaintiff has given consideration for the bill. Gross negligence may be evidence of mala fides, but it is not the same thing. We have shaken off the last remnant of the contrary doctrine. "(5) r*1 'iQT *^^ ^^ P*''ty presenting a bill or note payable to bearer be the mere agent of another, the agent's title is infected with the infirmity of his principal's title, although the principal {z) Snow V. Peacock, 2 0. & P. 221 (12 E. C. L. R.) ; and see Gill v. Cubitt, 3 B. & C. 466 (10 B. C. L. R.) ; 5 D. & R. 324, s. 0. ; Egan v. Threlfall, 5 D. & R. 326. (a) Query, whether this last proposition is not now incorrect? (6) Goodman v. Harvey, 4 Ad. & El. 8'?0-(31 E. 0. L. R.) ; 6 N. & M. 372, s. c, ; Uther V. Rich, 10 Ad. & E. 784 (37 B. C. L. R.) ; 2 P. & D. 579, s. o. In the case of Goodman v. Harvey, the bill bore on it, when discounted, the notarial mark of non-acceptance. To use the words of the Lord Chief Justice, " the plaintiff received the bill with a death wound apparent on it." See also Backhouse v. Harrison, 5 B. & Ad, 1098 (27 B. C. L. R.) ; 3 N. & M. 188 | Crook v. Jadis, 5 B. & Ad. 909 (27 E. C. L. R.) ; 3 U. & M. 257, s. c; Foster v. Pearson, 1 C, M. & R. 855; 5 Tyr. 255, s. 0. ; Willis v. Bank of England, 4 A. & E. 21 (31 E. C. L. R.) ; Raphael t. Bank of England, 17 C. B. 161 (84 E. 0. L. R.) ; Carlon v. Ireland, 5 B. & B. 765 (84 B. C. L. R.) ; Bank of Bengal v. Fagan, 7 Moore, P. C. C. 72. v. Mauldin, 7 Richardson, 1 1 . Affixing a seal to a bill of exchange does not deprive it of its commercial character. Bain v. Wilson, 10 Ohio (N. S.), 14. OF THE TRANSFER OF BILLS AND NOTES. 281 is in the agent's debt ; and the agent consequently cannot enforce payment of the maker.(e) It makes no difference that the bill or note is only pledged, and not absolutely transferred ; the pawnee acquires a property in it,(d) and is not liable in trover, to the real owner, as in the case of goods improperly pledged.(e) v Exchequer bills, which are payable to bearer before the blank is filled up,(/) bonds of foreign princes and states payable to bearer,(^) .and East India bonds, (A) resemble money and bills of exchange payable to bearer, in the necessary union of possession and pro- perty. Honest acquisition confers title. (i) A metallic token, like an I U, should seem-at common law to be only evidence of a debt. Though intended for circulation it can. therefore at common law give no right of action to a transferee. But the issuer of tokens made of mixed metals com- r*-if-fi-i pounded *partly of gold or silver, was formerly liable to the holder. (A) The issuer of a token made wholly or in part of copper, is liable only to the original taker.(Z) The issuing of tokens made partly of gold or silver was restrained by the 53 Geo. 3, c. 114 (now repealed by the 24 & 25 Vict, c. (c) Solomons v. Bank of England, 13 East, 135; 1 Rose, 99, a. o. As to agent transgressing his authority, see Watson v. Russell, 34 L. J., Q. B. 93. {d) Barber v. Richards, 20 L. J., Excli. 135. (e) Collins T. Martin, 1 Bos. & Pul. 648 | 2 Esp. 520, s. 0. See as to lien of banker, post. (/) Wookey v. Pole, 4 B. & Aid. 1 (6 E. C. L. R.) ; see as to dividesd warrants. Partridge v. Bank of England, 13 L. J., Q. B. 281, and 9 Q. B. 424 (58 E. C. L. R.), in error ; and see further as to Exchequer bills, Barnett v. Brandao, 6 M. & 6. 630 (46 E. C. L. R.) ; Brandao r. Barnett, 3 0. B. 519 (54 B. C. L. B.). In the state of Georgia it has been held, that any bond payable to bearer is a negotiable instru- ment. Byles.on Bills, 4th American edition, 228. (?) Gorgier v. Mieville, 3 B. & C. 45 (10 E. C. L. R.) ; 4 D. & R. 641, a. ; Jones T. Peppercorn, 28 L. J., tih, 158 | 1 .lohnston, 430, s. 0. (h) 51 Geo. 3, c. 64. (i) The embezzling of bills by agents, or pledging them beyond their lien, is a misdemeanor punishable by penal servitude or imprisonment, 24 & 25 Vict. c. 96,' s. 75. As to Lost Mils, see the Chapter on that subject. (A) 53 Geo. 3, c. 114, s. 3. This statute is repealed by 24 & 25 Vict. c. 101. (l) 57 Geo. 3, c. 46. 282 OP THE TBANSFBR OF BILLS AND NOTES. 101), and the issuiug- of tokens made wholly or partly of copper by the 57 Geo. 3, c. 46, Tokens into the composition of which neither the precious metals or copper enter, seem left to the common law. Wages of artificers, however, cannot in certain trades, even by consent, be paid in tokens. (m) Seventhly, as to transfer under peculiar ciriitniistances. ' Ah indorsement may be made even before the bill or note itself, and so render the indorser liable to subsequent parties to any amount warranted by the stamp. The plaintiiFs were bankers, with whom one G. had dealings. They refused to let him have more money, unless he procured them the indorsement of a third person. G. accordingly induced the defendant to sign his name across the back of four blank forms of promissory notes. G. then filled them up, and delivered them to the plaintiffs, who knew the notes were blank at the time of the indorsement. The notes were not paid by G., the maker, and the plaintiffs called on the defend^ ant as indorser. Lord Mansfield: "Nothing is so clear, as that the indorsement on a blank note is a Ifetter of credit for an indefi- nite sum. The defendant said, 'Trust G. to any amount, and I will be his security.' It does not lie in his mouth to say the in- dorsements were not regular." (w)(l) " An indorsement may be made either before or after accept- ance. (2) If a bill be indorsed after refusal to accept, and notice (m) 1 & 2 Will. 4, c. 37. («) Russell V. Langstaffe, Doug. 496 ; and this seems to be the law in America, though the amoutit of liability is not there limited by any stamp laws ; Bjles on Bills, 4th American edition, 230 ; Usher t. Dauncy, 4 Camp. 97. A bill may be indorsed before the day of its date. Passmore v. North, 13 East, 517; and see \ Smith V. Mingay, 1 M. & Sel. 87 ; Cruchley v. Clarence, 2 M. & Sel." 90 ; and see 17 Geo. 3, c. 30, s. 1, and Schultz v. Astley, 2 Bing. N. 0. 544 (29 E. C. L. R.) ; 2 Scott, 815 ; 1 Hodges, 525, s. o. See acceptance^on a blank stamp, post, Chapter on Acceptance. (1) A blank indorsement, upon a blank piece of paper, with intent to give a per- son credit, is in effect a letter of credit; and if a pfomissory note is afterwards written on the paper, the Indorser cannot object that the note was wdtten after the indorsement. Violett v. Patton, 6 Cranch, 142. (2) Indorsement on the last day of grace is good. Crosby v. Grant, 36 New Hampshire, 273. The indorsements on a note, if not dated, must be taken to be of OF THE TRANSFER OF BILLS AND NOTES. 283 thereof to the indorsee, or after it is due, these are circumstances which may reasonably excite suspicions as to the liability or sol- vency of the antecedent parties. An ^indorsee, therefore, r*i gi n of a bill dishonored or after due, with notice thereof, has not all the equity of an indorsee for value in the ordinary course of negotiation. He is held to take the bill on the credit of his indorser, and has no superior title against the other parties. (o) Drawer requested defendant to indorse two bills for his, the drawer's, accommodation. He accordingly drew two in favor of the defendant, which defendant indorsed and gave up to him. These bills the drawer then gave to A., and A. signed an agreement with de- fendant, that if one of the bills were paid, the defendant should be exonerated from the other. One of them the defendant accordingly did pay. The other was presented for acceptance and dishonored ; it was, after this, indorsed by A. to the plaintiffs, with notice of -the dishonor. On payment being refused, plaintiffs sued defendant. Held, that the plaintiffs, having taken the bill after notice of dis- honor, took the title of their indorser, and that, as the agreement would have been a defence to an action at the suit of A., it was a defence also against the plaintiffs. (|>) But if the indorsee had no- notice of the dishonor, he is not pre- judiced by it. Payee presented a bill for acceptance, which was refused. He neglected to advise the drawer, and thereby dis- charged the drawer as between the drawer and himself. He then indorsed the bill without informing his indorsee of the dishonor. Held, that the discharge to the drawer extended only to an action at the suit of the party guilty of the neglect, and that the indorsee having, had no notice of the dishonor, the same defence was not available against him as against his indorser.(g') (o) But as to a bill payable to bearer, see Goodman v. Harvey, 4 Ad. k El. 870 (31 B. 0. L. R.) ; 6 N. & Man. 372, s. 0. ; Raphael v. Bank of England, 17 0. B. 161 (84'E. C. L. R.) ; Carlon v.' Ireland, 5 E. & B. 765 (85 B. 0. L. R.). (p) Orossley v. Ham, 13 East, 498. (?) O'Keefe v. Dunn, 6 Taunt. 305 (I E. C. L. R.) ; 1 Marsh. 613, s. 0. ; affirmed the same date as the note. Snyder v. Oatman, 16 Indiana, 265 ; Stewart v. Smith,. 28 Illinois, 397 ; Bates v. Prichett, 5 Indiana, 22. When the indorsement is without date, and is shown not to have been made until after the date of the note, the burden is upon the holder to show that the indorsement was made before suit.' Parker v. Tuttle, 41 Maine, 349. 284 OP THE TRANSFER OF BILLS AND NOTES. "After a bill or note is due, "(r) says Lord Ellenborough, "it comes disgraced to the indorsee, and it is his duty to make in- quiries concerning it. If he takes it, though he gives a full con- sideration for it, he takes it on the credit of *the indorser, L J and subject to all the(s) equities with which it may be in- cumbered." Thus, where the defendant made a promissory note for the accommodation of the payee, and the payee indorsed it, overdue to A., and A. indorsed it to the plaintiff, it was formerly held that, as the absence of consideration would have been a good defence against the payee, it was also available both against A. and the plaintiff.(i)(l) in the K. B., 5 M. & S. 282 ; and see Whitehead v. Walker, 11 L. J., Exch. 168 ; 9 M. & W. 506, s. c, and Bartlett v. Benson, 14 M. & W. T33 ; 3 D. & L. 274; 15 L. J., Exch. 23, s. 0. (r)~ It is apprehended that wherever it is alleged that a bill was indorsed when overdue, or under any other peculiar circumstances, it lies on the party averring the fact to prove it on the general principle, " M incumbit probatio qui dicit." See post. (i) In Sturterant V. Ford, 4 M. & G. 101 (43 E. C. L. R.), Cresswell, J,, says, "per- haps the better expression would be, that he takes the bill subject to all its equities." («) Tiason v. Francis, 1 Camp. 19 ; Brown v. Davis, 3 T. R. 80 ; 7 T. R. 429 ; sed vide Charles v. Marsden, 1 Taunt. 224 ; Atwood v. Crowdie, 1 Stdrk. N. P. 483 (2 E.G. L. R.); Bayley, 6lh ed. 161; Chitty, 9th ed. 218; Roscoe, 386. Quxre, whe- ther this were at any time the law, supposing a bill to have been accepted after it became due. See Stein v. Yglesias, 1 C, M. & R. 565 ; 3 Dowl. 252; 1 Gale, 98, s. 0. So stood the authorities till very lately. But the' Court of C. P., in Sturtevaut V. Ford, and the Court of Q.- B. in Lazarus v. Cowie, and perhaps the Court of Exch. in Stein v. Yglesias, ante, have recently upheld the authority of Charles v. Marsden, and it should now seem that an original absence' of consideration is not one of those equities which attach on the instrument and defeat the title of an in- dorsee for value of an overdue bill, although with notice of the fact. See Carruthers V. West, 11 Q. B. 143 (64 E. C. L. R.). Some inclination to reconsider the modern rule seems, however, to have been evinced by the Exch. Chamber in Jewell v. Parr, 16 C. B. 684 (81 E. C. L. R.). (1) The indorsement of a promissory note after it is due, is equivalent to drawing a new bill payable at sight, and it must be proceeded with as such. Bishop v. Dex- ter, 2 Conn. 419 ; Bank v. Burriew, 1 Yeates, 360. A negotiable instrument will be presumed, if in the hands of a third person, to have been transferred before maturity- Smith V. Clopton, 4 Texas, 109. Possession is primS, facie evidence that the note was transferred to the plaintiff before the commencement of the action, and before the maturity of the note. Barrick v. Austin, 21 Barbour, 241. Indorsement is pre- sumed to have been made before the maturity of the note, if not at the day of its date. McDowell v. Goldsmith, 6 Maryland, 319. An indorsee of a note after ma- turity, takes the same interest that the indorser had, and his claim is subject to the same defence. Folsom v. Bartlett, 2 California, 163; Wheeler v. Barret, 20 Mis- souri, 573 ; Glasscock v. Smith, 25 Alabama, 474; Watson v. Flanagan, 14 Texas, OF THE TRANSFER OF BILLS AND NOTES. 285 It now, however, seems that the original absence of considera- tion, in the case of accommodation acceptances, the object of which is to raise money, will not defeat the title of an indorsee for value of an overdue bill or note, even although the indorsee had notice of the fact when he took the bill, unless there was an agreement, express or implied, restraining the negotiation of the bill or note after it should become due.(M) A bill or note assigned in due time on the day of payment is to be considered as assigned before it is due. (a;) The assignee of an overdue bill or note is not affected by an in- firmity in the title of an original or antecedent party, if his imme- diate assignor could have maintained an action. A bill was acce,pted on a smuggling transaction, indorsed before it was due to a hand fide holder for value, and by the latter indorsed, after due, to the plaintiff. Held, that as the indorser might have sustained an action against the acceptor, so could his indorsee.(«/) {u) Sturtevant v. Ford, 4 M. & a. 101 f Lazarus v. Oowie, 3 Q. B. 453 (43 B.C. L. R.) ; and see Stein v. Yglesias, 1 C, M. & R. 565. [x) Byles on Bills, 4tU American edition, 235, (y) Chalmers v. Lanion, 1 Camp. 383; Fairclough v. Pavia, 9 Exch. 690. 354 ; Bowen v. Thrill, 2 Williams, 382 ; Miller vl Bingham, 3 Ibid., 82 ; Bower v. Hastings, 12 Casey, 285; Southard v. Porter, 43 New Hampshire, 379; Little v. Cooper, 3 Stockton, 224 ; Farris v. Catlett, 32 Missouri, 469 ; Lord v. Favorite, 29 Illinois, 149 ; Kurz t. Holbrook, 13 Iowa, 562. A note payable by instalments, is overdue when the first instalment is overdue and unpaid, and he who takes it after- wards, takes it subject to all equities between the original parties. Vinton v. King, 4 Allen, 562. A note is not overdue till the days of grace have expired. Goodpaster V. Voris, 8 Clarke, 334. A note sold and delivered by payee before maturity, but not indorsed till overdue, was held to be open to equities. Southard v. Porter, 43 New Hampshire, 3'79. One who takes after maturity, has all the rights of his as- signor who took before maturity. Britton v. Hall, 1 Hilton, 528 ; Stamper v. Hayes, 25 Georgia, 546. As to when a note payable on demand is considered as overdue, see Freeman v. Ross, 15 Georgia, 252 ; Carlton v. Bailey, 7 Foster, 230 ; Dennen v. Haskell, 45 Maine, 430 ; Sackett v. Spencer, 29 Barbour, 180 ; Barbour v. Fnllerton, 12' Casey, 105; Stewart v. Smith, 28 Illinois, 397. When a note is Indorsed after maturity, it must be demanded of the maker within a reasonable time, and imme- diate notice given of non-payment. Tyler v. Young, 6 Casey, 143 ; Beebe v. Brooks, 12 California, 308; St. John v. Roberts, 6 Boswell, 593; Goodwin v. Davenport, 47 .Maine, 112. It is not necessary that the holder of a note, which has been nego- tiated after it has been dishonored, should make a new demand upon the maker for payment, and give notice of non-payment to the indorsees. The original demand and notice enures to the benefit of all subsequent holders. French v. Jarvls, 29 Conn. 347. Where an indorser of a note past due, has delayed for twenty-five days after the indorsement making a demand of payment from the maker, and giving notice to the indorser, all the parties residing 'm. the same town, the indorser will be discharged. Levy v. Drew, 14 Arkansas, 334. 286 OF THE TRANSFER OF BILLS AND NOTES. An indorsee of an overdue bill or note is liable to such *equities only as attach on the bill or note itself, and not L -'to claims arising out of collateral matters, (s) Therefore, the indorsee of an overdue note is not liable to a set-off due from the payee to the maker.(a)(l) And although the indorsee had notice, gave no consideration, and took the bill on purpose to defeat the set-off.(6) Yet it should seem, that where a negotiable instru- ment is deposited as a security for the balance of accounts, and is afterwards indorsed overdue, in an action by the indorsee against the party originally liable, the state of the account may be gone into.(e) And where there has been an agreement for a set-off, the transfer of the bill overdue will not defeat it.(£^ Where the bill is deposited as a security for the balance of a running account, but at the time when the bill becomes due the balance is in favor of the depositor, and the bill is not withdrawn by him, and afterwards the balance shifts in favor of the deposi- tary, the depositary is not to be considered as the transferee of an overdue bill.(e) This yule also applies to bankers' checks, transferred a long time after they are issued. The owner of a check on a banker for 601., having lost it, the check was paid five days after its date to a shopkeeper, who received the amount at the bank. Held, that the shopkeeper was liable to refund the money to the owner of the check ; for, having taken it after due, he acquired no better title than the party from whom he took it, and that it lay on him to show that his assignor had a title. "A cheek," says Mr. Justice Holroyd, " is payable immediately, the holder of it keeps it at his («) Holmes v.Kidd, in error, 28 L. J 113; 3 H. & N. 891. (a) Burrough v. Moss, 10 B. & C. 558 (21 B. C. L. R.) ; 5 M. & R. 296, s. o.j Stein V. Yglesias, 1 C, M. & R. 565 ; 3 Dowl. 252 ; 1 Gale, 98, s. 0. It has been thought that the indorsee would be affected by the set-off if he have notice of it at the time he takes the bill. Goodall v. Ray, 4 Dowl. 76. But it is now clear that notice makes no difference. Whitehead r. Walker, 11 L. J., Exch. 168 ; 9 M. & W. 506, s. 0. (6) Quids v. Harrison, 24 L. J., Exch. 66; 10 Exch. 572, s. o. (c) CoUenridge V. Farquharson, 1 Stark. 259; and see the observations of Mr. Baron Parke on this case in Quids v. Harrison, ubi supra. (d) Ibid. (e) Alwood V. Crowdie, 1 Stark. 483 (2 E. 0. L. R.). (1) llughes V. Large, 2 Barr, 103; GuUett v. Hoy, 15 Missouri, 399. OF THE TRANSFER OF BILLS AND NOTES. 287 peril, and a person taking it after it is due takes it also at his peril."(/) But a distinction has been taken between the transfer of a bill or note payable at a fixed period and overdue, and the transfer of a check some days old. For, in the case of such *a bill or r*i £54-1 note, there is a fixed time for payment, after -which it can- not possibly circulate without some suspicion ; but there is no such fixed time in the case of a check. And, therefore, it has been held, that though the taking of a check six days old is a circum- stance from which the jury may infer fraud, it is not conclusive evi,dence, so as to prevent the party taking the check from suing on it, or retaining it, or the money received upon it.(^)(l) A note payable on demand is not to be considered as overdue, without some evidence of payment having been demanded and re- fused.(A) Although it be several years old, and no interest has been paid on it. "A promissory note," says Mr. Baron Parke, "payable on demand, is intended to be a -continuing security: it is quite unlike a check, which is intended to be presented speedily."(i)(2) The fact that a note is overdue must distinctly appear in plead- ing. (A;) Though the maker of a bill or note assigned when overdue may (/) Down v. Hailing, 4 B. & 0. 330 (10 B. C. L. E.) ; 6 D. & B. 445 ■ 2 0, & P. 11 (12 E. C. L. R.), s. 0. (^) Rothschild v. Oorney, 9 B. & C. 388 (IT B. 0. L. R.) ; 4 M. & R. 411 ; Dans. k L. 325, s. 0. See Serrell t. Derbyshire Railway Company, 9 0. B. 311 (67 E. 0. ^ L. E.), and the Chapter on Checks. (A) Barough T. White, 4 B. & C. 327 (10 E. C. L. R.) ; 6 D. & R. 379; 2 C. & P. 8 (12 B. C. L. R.), s. 0. ; see Goodall v. Bay, 4 Dowl. 76. (j) Brooks V. Mitchell, 9 M. & W. 15 ; Cripps v. Davis, 12 M. & W. 165 ; see Bar- trum T. Caddy, 9 Ad. & E. 275 (36 B. C. L. fi. ). In America it has been held that such a note,''unless transferred within a reasonable time after date, is to be con- sidered aa overdue. Byles on Bills, 4th American edition, 234. (A) Crippa v. Davis, 12 M. & W. 159. (1) The Indorsee of a check, dated the day after he receives it, will not take it subject on that account to want of consideration between the drawer and indorser. Walker v. Geisse, 4 Whart. 252. (2) A promissory negotiable note payable on demand, unless transferred within a reasonable time, will be considered overdue and dishonored, the English rule being modified in this country. Carll v. Brown, 2 Michigan, 401. 288 OF THE TRANSFER OF BILLS AND NOTES. resist payment at law, equity has a concurrent jurisdiction, and may, when justice requires, order the instrument to be delivered up to be cancelled, and restrain the holder from proceeding at law.(Z) The law, in the absence of any evidence on the subject, pre- sumes a transfer to have been made before the bill was due.(TO)(l) Where a banker on whom a check is drawn, is also the banker of the bearer, and the check is paid in, there are two characters in which the banker may have received it, he may have received it P^^nr-i merely as agent of the bearer, like any *other securities which the bearer may have paid in on account : or he may have received it as drawee, and so by receiving it have paid it. Primd facie, he must be taken to have received it as agent of the bearer, (w) and will discharge himself by giving timely notice of non-payment tp the bearer ;(o) but if, while he keeps the check, the drawer pays in money, the banker is bound to appropriate that money to the payment of the check, though a larger balance is due to him from the drawer. ( p) Where a man to whom a bill is transferred, sends it back as use- less, that is an abandonment of his right as transferee, and he can- (2) Hodgson r. Murray, 2 Sim. 515 ; v. Adams, Tounge, 117. (m) Parkia v. Moon, 7 C. & P. 408 (32 E. C. L. E.) ; Lewis t. Lady Parker, 4 Ad. & B. 838 (31 B. 0. L. R.) ; 6 N. & M. 294 ; 2 Har. & W. 46, s. 0. ; Cripps v. Davis, 12 M. & W. 165. So also repeatedly held in America. See Byles on Bills, 4tli Ameri- can edition, 234. {n) Boyd v. Bmerson, 2 Ad. & E. 184 (29 E. C. L. R.) ; 4 N. & M. 99, s. c. (0) Ibid. \p) Kilsby T. Williams, 5 B. & Aid. 815 (7 B. C. L. E.) ; 1 D. & B. 476,. s. o. (1) It seems that in the absence of all proof as to the time when a note was in- dorsed, the court will presume that it was indorsed while current. Washburn t. Eamsdell, 17 Vermont, 299 ; Burnham v. Webster, 1 App. 232 ; Burnham v. Wood, 8 N. Hamp. 334 ; Mobley t. Ryan, 14 Illinois, 51 ; Leland v. Farnham, 25 Vermont, 553 ; Andrews v. Chadbourne, 19 Barboar, S. C. Eep. 147. The indorsement of a note, in presumption of law. Is contemporaneous with the making of it, or at all events antecedent to its becoming due; and if the defendant, in a suit by the in- dorsee, wishes to avail himself of payment to the original holder, it is incumbent on him to show that the indorsement was subsequent to the payment. Pinkerton v. Bailey, 8 Wend. 600. A note assigned on the day of payment is assigned before it has become due. Walter v. Kirk, Ibid. 55. ; OF THE TRANSFER OF BILLS AND NOTES. 289 not, by getting the bill again into his hands, acquire a right to sue without a new transfer.(g') After payment, at maturity, by the acceptor or maker, bills or notes are extinguished and cannot be transferred,(r) except prom- issory notes payable to bearer on demand, reissued by the original maker, having taken out a licence for that purpose. («) And an accommodation bill paid by the drawer at maturity can- not be reissued by him.(^) And a note payablp on demand, which has been paid, cannot be reissued by the maker, although the indorsee have no notice that the note has ever been paid, or that payment has ever been de- manded. (m)(1) [q) Cartwright v. Williams, 2 Stark. 340 (3 E. 0. L. E.). {r) 55 Geo. 3, c. 184, s. 19. (s) Sections 14 and 24. Until a bill or note has been paid by the maker or ac- ceptor, or on their behalf, it has not discharged its functions, and does not require a new stamp, though reissued after due, and after it has been paid by an indorser. Callow T. Lawrence, 3 M. & Sel. 95. {ty Lazarus t. Cowie, 3 Q. B. 464 (45 E. C. L. R.) ; Parr v. Jewell, 16 0. B. 684. («) Bartrum t. Caddy, 9 Ad. & B. 275 (36 E. C. L. E.) ; 1 Per. & D. 207, s. o. (1) Where a note has been once paid, it ceases to be negotiable, as against those who would be prejudiced by the transfer. Cochran t. Wheeler, 1 N. Hamp. 202.; Rockingham Bank t. Claggett, 9 Poster, 292. Where a bill of exchange, payable to A., is taken up by the drawer, and the indorsement of A> stricken out, it becomes dead to all intents and purposes as a negotiable instrument. Price v. Sharp, 2 Ire- dell, 417. A bill of exchange, promissory note, or order, made payable to a. par- ticular person, which has been paid by one whose duty it Was to make the payment, without any right to call upon another party to repay the amount, is no longer a valid contract. It has performed'its ofiBce and ceases to have a legal existence. But this principle does not hold good as to a bank note, which is not a contract with any particular person, but with any one who may become the bearer or holder of it. Ballard v. Greenbush, 24 Maine, 336. Recovery of judgment against the maker of a note, destroys its negotiable quality, and it cannot be afterwards transferred so as to enable the holder to maintain an action in his name against an indorser. Brown V. Poster, 4 Alabama, 282 ; Sawyer v. Bradford, 6 Ibid. 572. An indorser paying the note has the same right to an assignment of a judgment against the maker on the note that he has to the note itself. State Bank v. Wilson, 1 Dev. 484. A prom- issory note may be reissued by an indorser after it is due, after it has been dis- counted in bank, and paid by hi« at maturity. Kirksey v. Bates, 1 Alabama, 303. The indorsement of a bill by the payee to the acceptor operates to discharge the liabilities of all parties to it ; and no action can afterwards be maintained upon it as a bill of exchange. Its negotiability is destroyed, and cannot be revived by the acceptor indorsing it to a third person. Beede v. Real Estate Bank, 4 Pike, 546. Where the payee of a note having indorsed it, afterwards comes fairly to the poa- 19 290 OF THE. TRANSFER OP BILLS AND NOTES. "But a bill of exchange," says Lord Elle^boroughy "is negoti^ able, ad infinitum, until it has been paid by or discharged on behalf of the acceptor. If the drawer has paid the bill, it seems that he inay sue the acceptor upon the bill; and if, instead of suing the acceptor, he put it into circulation on his own indorsement only, it does not prejudice any of the other parties who have indorsed the bill, that the holder should be at liberty to sue the acceptor." (a;) *The drawer of a bill payable to Jm own order, indorsed •- -I it over, and, on the bill being dishonored, paid it to the holder, and afterwards indorsed it again. Held, that this last in- dorsee might recover against the acceptor, (y) But, where the bill is drawn payable to a third person, is indorsed by him, dishonored and taken up by the drawer, who (the payee's indorsement still re- maining) indorsed it to the plaintiff, it was held, that the plaintiff could not recover against the acceptor ; for in this case ilw drawer had no title to indorse, and the payee could not be rendered liable, (z) If a bill or note be paid before it is due, and is afterwards in- dorsed over, it is a valid security in the hands of a bond fide in- dorsee. "I agree," says Lord Ellenborough, "that a bill paid at maturity cannot be reissued, and that no action can afterwards be maintained upon it by a subsequent indorsee. A payment before it becomes due, however, I think, does not extinguish it any more than if it were merely discounted. A contrary doctrine would add a new clog to the circulation of bills and notes ; for it would be impossible to know whether there had not been an anticipated pay- ment of them. It is the duty of bankers to make some memo- randum on bills and notes which have^been paid, and if they do (x) Callow V. Lawrence, 3 M. & Sel. 95 ; and see Roberts v. Eden, 1 B.'i; Pul. 398, and the obseryatlous of Patteson, J., on that case in Bartrum t. Caddy, 9 Ad. & E. 2T5 (36 E. 0. L. R.) ; 1 Per. & D. 207, s. 0. (y) Ibid. ; Hubbard v.,,Jackson, 3 C. &. P. 134 (14 B. C. L R.) ; 4 Bing. 390 (13 E. 0. L. R.) ; 1 M. & P. 11, s. o. In this last case, the holder had recovered at law against the drawer, and then the drawer, without consideration, indorsed the bill over to the plaintiff; but Best, C. J., held, and the Court of 0. P. confirmed his judgment, that the plaintiff might recover, (a) Becli T. Robley, 1 H. Bl. 89, n. session of it again, he will be regarded, at least j}rim& facie, as the proprietor of it, and may even at the trial strilte out all subsequent indorsements, and recover upon it in hiS'Own name without a reindorserhent to him. Bond v. Storrs, 13 Conn. 412. OF THE TRANSFER 01" BILLS AND NOTES. 291 not, the holders of such securities cannot be affected by any pay- ment made before they are due."(a) After a partial payment, at maturity, by the acceptor, or any other party really the principal debtor, the holder cannot recover of the acceptor more than the balance.(6) A question sometimes arises whether a bill have been paid or transferred. Though the holder give to a person taking up the bill a general receipt, importing that he has received payment, evidence is admissible to show that such person taking up the bill paid the money, not as agent for the acceptor or drawer, but as indorsee. (c) * A transfer to .the acceptor before maturity does not extinguish the bill ; the acceptor may re-issue it before it ■- ^ is due, and the parties whose nanjes are on the bill will be liable to a subsequent holder.(c?) A bill or note cannot be indorsed for part of the sum remaining due to the indorser upon it, if the limitation of the sum for which it is indorsed appear on the indorsement itself. Such an indorse- ment is not warranted by the custom of merchants, and would be attended with this inconvenience to the prior parties, that it would subject them to a plurality of actions.(e) It is conceived, that the effect of such an indorsement, when attempted, is to give the indorsee a lien on the bill, but not to transfer a right of action, except in the indorser's name.(/) But if a bill or note be indorsed or delivei-ed for a part of the sum due on it, and the limitation of the transfer do not appear on the instrument, the transferee is entitled to sue the maker or (a) Burbidge v. Manners, 3 Camp. 193; Attenborough v. Mackenzie, 25 L. J., Exch. 244. (i) See the Chapter on Payment. (c) Graves t. Key, 3 B. * Ad. 313 (23 E. C. L. R.) ; see Hubbard v. Jackson, 4 Biijg. 390 (13 B. C. L. R.) ; 1 M. & P. 11, s. c, and Pollard v. Ogdea, 2 E. & B. 459 (75 E. C. L. R.). (rf) Attenborough t. Mackenzie, 25 L. J., Exch. 244. But see Byles on Bills, 3d American edition, 221. (e) Hawkins v. Oardy, 1 Lord Baym. 360. (/) So held in America. See Byles on Bills, 4th American edition, 238. 292 OF THE TRANSFER OF BILLS AND NOTES. acceptor for the whole amount of the bill, and is a trustee of the surplus for the transferer. (^)(1) If the hill have been partly paid, either by the acceptor or by the drawer, who for this purpose is the agent of the acceptor,(A) the bill may be indorsed for the part remaining due.(^■) A release at maturity, like a payment at maturity, operates as a complete extinction of the bill. But a premature release to a party liable on, the bill, will not discharge the releasee as against an indorsee for value before maturity of the bill and without notice.(A;) The holder cannot transfer after action brought, so as to enable his transferee to sue also, provided the latter were aware that the first action had been commenced. (?) *But if the transferee ■- -' had no notice, the transfer is good.(»i) Where a negotiable instrument is transferred abroad, by a mode of transfer valid here, but invalid there, or vice versd, a question may arise as to the validity to be attributed to such a transfer in our Courts. The general rule of law, on this subject is, that a con- tract is to be governed by the law of the country where it is made or where it is to be performed, ^but the remedy is to be moulded by (ff) R6id V. Furnival, 1 0. & M. 538 ; 5 C. & P. 499 (24 E. G. L. R.), s. o. (A) Bacon v. Searles, 1 Hen. Bl. 88. (i) Hawkins t. Cardy, 1 Lord Raym. 360 ; Garth. 4G6, s. o. ; and see Johnson t. Kennion, 2 Wils. 262. » (ft) Dod V. Edwards, 2 0. & P. 602 (12 E. C. L. R.). {I) Marsh v. Newell, 1 Taunt. 109; Jones v. Lane, 2 Y. & C. 281. But it should seem from a receut decision in the Queen's Bench that this defence cannot be raised by plea, and that the defendant's course is to apply to the equitable jurisdiction of the court, although Mr. Baron Alderson, in Jones v. Lane, seems to have thought otherwise. Deuters T. Townshend, 33 L. J., Q. B. 301. In America it has been held that a judgment extinguishes the negotiable quality of a note. Byles on Bills, 3d American edition, 221. (m) Colombier t. Slim, K. B., T. T., 12 Geo. 3; Ghit. 9th ed. 217. — ;,i,fc : . (1) A moiety of a promissory note cannot be assigned go as to enable the assignee to maintain an action in his own name for his portion of the note. Miller v. Bled- soe, 1 Scam. 530. OP THE TRANSFER OF BILLS AND NOTES. 293 the law of the country where it is sought.(w) A bill is to be con- sidered as made in the country where it is to be paid. This subject, however, will be considered more in detail in the subsequent Chapter on Foreign Bills and Foreign Law.{p) After the death of the holder his personal representatives should transfer. (p) But where indorsement is necessary, and the testator has only written his name on the bill without delivery, the executor cannot complete the indorsement by mere delivery.(g')(l) After the holder's bankruptcy, his assignees should transfer, unless the bankrupt were merely agent or trustee. For the Bank- rupt Laws have no operation on any property in the possession of the bankrupt, unless he have therein a beneficial interest.(r) The husband of a married woman, who acquires a right to a bill or note given to the wife, either before or during marriage, should indorse. (») Bankers have a general lien on all securities for money which are deposited with them, as bankers, in the way of their business, and therefore on bills and notes payable to *bearer, or on r*l691 Exchequer bills, although the customer who deposited ^ J them was not the real owner, and had no authority to give a lien;(() but not on Exchequer bills delivered to them merely for the purpose of receiving the interest and exchanging them for new ones.(w)' Where chattels are pledged as security for a debt payable at a day prefixed, the pledgee has at common law on default of his {Xi) See the authorities collected in Trimby t. Vignier, 1 Bing. N. C. 151 (2T E. C. L. R.) ; 4 M. & S. 695 ; 6 C. & P. 25 (25 E. C. L. R.),.s. o. (fi) Chapter xxxi. [p) See ante, Chapter v., Executors, and as to the question whether one of several executors can indorse. {q) Bromage v. Lloyd, 1 Exch. 32. (r) See the Chapter on Bankruptcy. (a) See Chapter v., Married Women. \t) Barnett t. Brandao, 6 M. & G. 630 (46 E. C. L. B.). (m) Brandao v. Barnett, 3 C. B. 519 (54 B. C. L. R.), Dom. Proc. (1) An assignment of a promissory note payable to the testator may be made by one of several co-executors. Dwight v. Newell, 15 Illinois, 333. 294 OF THE TRANSFER OF BILLS AND NOTES. debtor, and after giving notice to redeem, a right to sell the pledge and reimburse himself.(jB) This power of sale extends not only to a pledge of chattels, but to a pledge of stock or annuities. («/) The rule of the civil law is in substance the same. " Venduntur pignora simul atque solutionis dies venit, et debitor legitimo modo interpellatus, sine just^ caus^ cessat."(s) But a mere pledge of negotiable paper does not, it is conceived, confer a power of sale. For the pledgee is trustee of the rights and obligations of the holder. He cannot transfer his trust, but, must preserve his remedies and collect payment from the parties liable at maturity. His transfer, though it may confer title, will not exonerate himself.(a) The words goods and chattels, or either of them, in a testamen- tary instrument, will pass all the personal estate of the testator, including choses in action, such as bills and notes. But, where the bequest is of all goods and chattels in a particular place, bills and notes in general do not pass. But it has been considered, that such notes as are commonly treated as mon4y will pass.(6)' It may not be useless to subjoin a few words as to the extent to which bills or notes may be the subjects of a donatio mortis causd.ie) The law on this subject is entirely derived froni the civil law. |-^-| ,,Q-| But the Digest and the commentators distinguish *between several species of donatio mortis causd, and in a manner very unsatisfactory. (<£) A donatio mortis causd, is thus defined in the Institutes : Mortis causd donatio est, quse propter mortis fit sus- (x) Tucker t. Wilaon, 1 P. Wms. 261 ; 1 Bro. P. C. 494, s. o. in error ; Pigott V. Cubley, 15 0. B., N. S. 701 (109 E. C. L. K) ; 2 Kent's Com. 805 ; Martin v. Reed, 31 L. J., C. P. 126. (y) Tucker t. Wilson, ubi sup. ; Lockwood t. Ewer, 2 Atkins, 303. (z) Doctrina pandectarum, cap. 6, s. 318. (a) See 2 Kent's Com. 802, 805 ; Appleton v. Donaldson, 3 Barr, 381 ; Brownfc v. Ward, 3 Duer, 360. (6) Stuart v. Bute, 11 Ves. 662 ; s. c, in Dom. Proc, I Dow. T3; see 1 Roper on Leg. 224, 3d ed. ; 2 Wms. on Exors. 648 and 942, 3d ed. (c) See further on this subject the profound work of Mr. Justice Williams on Ex- ecutors. {d) See the judgment of LordHardwicke, in Ward v. Turner, 2 Yes. 431, and of Lord Boslyn, in Tate v. Hilbert, 2 "Ves. jun. 111. OP THE. TRANSFER OF BILLS AND NOTES. 295 pieionem, cum quis ita donat, ut si quid humanitus ei eontigisset, haberet is qui accipit ; sin autem supervixisset, is qui donavit re- ciperet, vel si eum donationis poenituisset, aut prior decesserit is, Gui donatum sit. * * * * * ^t in summd, mortis causd donatio est, cum magis quis se velit habere, quam eum cui donat, magisque eum cui donat, quam heredum suum. But, as now understood in the law of England, a donatio mortis causd is a conditional gift by the donor in contemplation pf death(e) to take effect in the event of death. (/) The result of the cases seem to be, that a bond(^) or a policy of insurance, (A) or a bank note, or bill of exchange, or promissory note, specially indorsed to the donee or made or become payable to bearer, may be the subjects of a donatio mortis oausd,{i) and that the delivery of a bond with mortgage deeds will impose a trust upon the real and personal representatives in favor of the donee. (A) But a check drawn by the donor upon his own banker cannot be the subject of a donatio mortis causd, because the death of the drawer is a revocation of the banker's authority to pay.(Z) No more, it is conceived, would be the gift of an I U.(jw) And nego- tiable instruments, which are commonly treated as *money r:i:-|7i-i for other purposes, may, like money, ipass us donationes mor- tis causd.{n) The Courts lean against this sort of disposition. " Im- provements in the law," says Lord Eldon, "or some things which have (c) Duffield V. Elwes, 1 Bligh, N. S. 530 ; Miller v. Miller, 3 P. Wms. 356. See the opinion of Eyre, C B., in Blount v. Barrow, 1 Ves. jun. 546 ; but the qualifica- tion as to last illness is not found in the report of the case ; i Bro C. C. 12. See 1 Roper on Legacies, 3d ed.^ and Williams on Executors, 3d ed. 609. (/) Delivery to an agent of the donee will be good, but not to a mere agent of the donor; Farquharson t. Cave, 2 Coll. 356; Powell?. Hellicar, 28 L. J., Chan. 355 ; 26 Beav. 261, s. o. A mere symbolical delivery will not suflSce, Ward v. Tur- ner, supra. There must be an actual delivery, Bunn v. Martham, 7 Taunt. 227 (2 B. 0. L. R.) ; 2 Marshall, 532, a. c. ; Tate v. Hilbert, 2 Ves. jun. 120 ; Irons v. Small- piece, 2 B. & Al. 553. , [g) Snellgrbve v. Baily, 3 Atk. 30. (7() Witt v. Amiss, 30 L. J., Q. B. 318. (i) Drury v. Smith, 1 P. Wms. 405 ; Miller v. Miller, 3 P. Wms. 356. (A) Duffield V. Elwes, 1 Bligh. 409. [l) Unless cashed in the lifetime of the donor. Bouts v. Ellis, 17 Beav. 121 ; 4 De G., M. & G. 249 ; Powell v. Hellicar, 28 L. J., Chan. 355; 26 Beav. 261, s. o. (m) Tate v. Hilbert, 2 Ves. jun. Ill ; 4 Bro. C. 0. 286. For a check imports im- mediate payment ; but a check to buy mourning has been held to be the subject of a donatio mortis eamd. Lawson v. Lawson, 1 P. Wms. 441 : but see 2 Ves. jun. 121 ; see also as to checks. Bouts v. Ellis, 4 De G., M. & G. 249. (n) See Ranklin v. Weguelin, 27 Beav. 309 ; 29 L. J., Chan. 323, s. 0. ; Veal v. Veal, 27 Bear. 303 ; 29 L. J., Chan. 321, s. 0. 296 OF THE TRANSFER OF BILLS AND NOTES. been considered improvements, have been lately proposed, and if, , among those things called improvements, this donatio mortis causd was struck out of our law altogether, it would be quitp as well."(o) Yet it has since been twice held that a promissory note pay- able to order and not indorsed may pass as a donatio mortis causd. {p){l) A donatio mortis causd may be made subject to a condition or trust.(g') t A donatio mortis causd resembles a legacy in these respects, that it is revocable during tbe life of the donor, that it is subject to debts on a deficiency of assets,(r) that it is liable to legacy duty,(«) and that it may be made to the donor's wife. It differs from a legacy in these other respects; that it does not require probate, and that although it be of a specific chattel, yet the executors' assent is not necessary.(i) A donatio mortis causd differs from a gift inter vivos in these respects. It is revocable. It may be made to a man's wife; and (0) Duffield T. Elwes, 1 Bligh, 633, A. d. 1827 ; T Taunt. 221 (2 E. 0. h. R.), s. 0. (p) Veal V. Veal, 29 L. J., Chan. 321 ; 2T Beav. 303, s. c. ; Rauklin v. WegueUn, supra. (?) Blount V. Burrow, 4 Bro., 0. C. 72 ; HilU v. Hills, 10 L. J., Exch. 440 ; 8 M. & W. 401, s. 0. (r) Smith v. Caren, 1 P. Wms. 406. (s) 8 & 9 Vict. o. 16. {t) TliompsoQ V. Hodgson, 2 Stra. 171. (1) A promissory note expressed to be for value received but stated, by an ac- companying writing, to be made and delivered as a gift, to be used after the maimer's decease for charitable purposes, cannot be sustained. Phelps v. Pond, 23 New York, 69. It is settled by a concurring train of decisions in the American Courts that a promis- sory note of a third person held by the donor, is a good subject of a gift causa mor- tis. Grover v. Grover, 24 Pick. 261 ; Brown v. Brown, 18 Conn. 410 ; MoConnell v. McDonnell, 11 Vermont, 290 ; Sessions v. Moseley, 4 Gushing, 87 ; Jones v. Deyer, 16 Alabama, 221 ; Constant v. Schuyler, 1 Paige, 316. A promissory note, however made by the donor, in favor of the donee, cannot be the subject of such a gift. The want of consideration may be taken advantage of in an action by the donee against the executors or administrators of the donor. Bowers v. Hurd, 10 Mass. 427 ; Parish V. Stone, 14 Pick. 198 ; HoUey v. Adams, 16 Vermont, 216 ; Smith v. Kittridge, 21 'Ibid. 238 •; Bradley v. Hunt, 5 Gill. & Johns. 54 ; Parker v. Marston, 27 Maine, 196. The contrary was indeed lield in Wright v. Wright, 1 Ooweh, 598. But that case has been expressly overruled. Craig v. Craig, 3 Barbour, Ch. Eep. 76 ; Harris v. Clark, 3 Comstook, 93. OF THE TRANSFER OF BILLS AND NOTES. 297 it may be of a bond or mortgage deed, though neither the debt •would have passed at law, nor equity have converted the donor into a trustee. The Wills Act, 1 Vict. c. 26, has not abolished donationes mortis eausd.{u) Bills or notes could not at common law be taken in execution, at the suit of a subject; nor, if taken, could the sheriff or his assignee acquire a title against the other parties to the instrument, they being only assignable by the custom of merchants, in the way of ordinary mercantile transfer. *And such as more nearly pj['j'21 resemble money than securities, as bank notes, were, like money, not subject to be taken in execution. (a;) But now by the 1 & 2 Vict. c. 110, s. 12, money, bank notes, checks, bills, and promissory notes, with all other securities for money, may be seized under a writ of fieri facias. The sheriff is to deliver the money and bank notes to the execution creditor, and is to receive payment, or to sue in his own name, being indemnified by the plaintiff, on the checks, bills, or notes. But if the creditor, before receiving payment, proceeds against the person of the defendant, he forfeits the benefit of the security, (z/) Bills and notes are liable to be seized under an extent.(2) Bills or notes are not the subjects of larceny at the common law; for it is said, that bills or notes are choses in action, and a chose in action cannot be Gtolen.(a) But, by the 24 and 25 Vict. («) Moore v. Darton, 4 Do G. & Smale, 519. (s) Francis v. Nash, Rep. temp. Hardwicke, 53 ; Knight v. CridiUe, 9 Bast, 48 ; Fieldhouse v. Oroft, 4 East, 510. (y) Sect. 16. («) West, 27, 28; 164-5. (a) As a general rule a piece of paper or parchment, whether blank or inscribed with any characters, is the subject of larceny. But there are at common law two • exceptions, first, a muniment of title to land, which, it is held, savors of the realty. Secondly, a written paper, which is mere eTidence of a right, resting in contract only, like a bill, note, bond, or executory agreement. A reason given in both these cases is this, that the documents are of no use to any bat the owner; and therefore are not in danger of being stolen. On which it has been well remarked, that " if I steal a skin of parchment worth Is. it is felony, but when it has £10,000 added to its value by what is written upon it, then it is no offence'to take it away." Rex v. Westbeer, 2 Stra. 1133. These exceptions are palpably capricious and unreason- able, and are not to be extended. Therefore, it has been held, that a pawnbroker's ticket may be the subject of larceny. Reg. v. Morrison, 28 L. J., 210, Mag. Ca. 298 OF THE TRANSFER OF BILLS AND NOTES. c. 96, s. 27, the stealing of any bill, note, warrant, or order for the payment of money, is made felony, of the same natur€,and in the same degree, and punishable, in the same manner, as larceny of any chattel of like value with the money due on the security. The embezzlement of bills or notes by clerks or servants is felony. (J) The embezzlement of bills or notes by agents, not being clerks or servants, or the selling, negotiating, or pledging then!, in viola- r*17^n *'°° °^ ^^^ purpose for which, by a written ^direction, they were intrusted, and the disposing of them for the agents' own benefit, is a misdemeanor subjecting to penal servi- tude, (c) Where a man is both entitled and liable on the face of a bill, or liable to contribute, though his liability do not appear on the face of the instrument, he cannot sue. But the technical diflBciiltyimay be removed by indorsement or transfer, (c?) before the bill is due. Eighthly, as to the circumstances under which equity will restrain negotiation. A Court of equity will interpose to restrain the nego- tiation of a bill unduly obtained; for the defence at law may not be available as against an innocent indorsee for value, or time may destroy the evidence ;(e) and will, on equitable terms, decree a bill void in its creation, or unduly obtained, to be delivered up to be cancelled.(/) (6) 24 & 25 Vict. c. 96, s. 68. (c) 24 & 25 Viet. c. 96, s. 75. (d) See Steele v. Harmer, 15 L. J., Exch. 217 ; 14 M & W. 831, s. c, and 4 Exch., 1, in error, and ante. («) Bromley V. Holland, 7 Ves. 20, 413 ; Bishop of Winchester t. Fournier, ^ Ves. jun. 483 I 3 Ves. 757 ; 9 Ves. 355. As to the parties to the suit, see Toley v. Carlon, 1 Younge, 373. But the Court will not order a bill to be delivered up unless the plaintiff has- a right to the possession, and the defendant's detention of the bill is inequitable. Jones v. Lane, 3 Y. & 0. 281. In Threlfall v. Lunt, 7 Sim. 627, a demurrer was allowed to a bill for the delivery up of a bill of exchange, the amount of which th'e defendant had recovered at law, and had received from the plaintiff; but see Pinlcus v. Peter, 6 Jurist, 431. (/) 2 Ves. jun. 488 ; 7 Ves. 413 ; 2 Ves. & Beam, 302 ; Mackworth v. Marshall, 3 Sim. 368. Osbaldiston v. Simpson, 13 Sim. 513. So where the name of the payee, as indorser, was forged, a bond fide holder was restrained from suing the acceptor, and the Court directed the bill to be delivered up to be cancelled. Esdaile v. La Nauze, 1 Y. & C. 394 ; Jones v. Lane, 3 Y. & C. 281. OF THE PRESENTMENT FOR ACCEPTANCE. 299 ♦CHAPTER XII. [*174] OF THE PRESENTMENT FOR ACCEPTANCE. ADVISABLE IN ALL CASES . . . 174 NECESSARY WHERE BILL IS DRAWN AT OR AFTER SIGHT .... 1T4 WHEN TO BE HADE .... lYS AT WHAT HOCR .... 176 EXCUSED BY PUTTING BILL INTO CIR- CULATION 176 OR BY OTHER REASONABLE CAUSE . 176 TO WHOM IT SHOULD BE MADE . . 177 WHAT TIME MAY BE GIYBN TO THE DRAWEE 177 CONSEQUENCE OF NEGLIGENCE IN PARTY PRESENTING . . . . ,177 PROPER COURSE FOR HOLDER WHEN DRAWEE CANNOT BE FOUND, OR IS DEAD 177 PLEADING 177 It is in all cases advisable for the holder of an unaccepted bill to present it for acceptance without delay ; for, in case of accept- ance, the holder obtains the additional security of the acceptor, and, if acceptance be refused, the antecedent parties become liable immediately. It is advisable, too, on account of the drawer, for, by receiving early advice of dishonor, he may be better able to get his effects out of the drawee's hands. But presentment for acceptance is not necessary in the case of a bill payable at a certain period after date.(l) It is said, however, that it is incumbent on a holder who is a mere agent, and on the payee, when expressly directed by the drawer so to do, to present the bill for acceptance as soon as possible ; and that, for loss arising from the neglect, the payee must be responsible, and the agent must answer to his principal. (a) (a) Chit. 9th ed. 273 ; Poth. 128 ; Marius, 46. ( 1) A bill payable at a given time after date need not be presented for acceptance ; payment may be at once demanded at its maturity. Bank of Washington v. Trip- lett, 1 Peters, S. 0. 25 ; Townsley v. Sumrall,2 Ibid. 170. A bill of exchange pay- able at a time certain, need not be presented for acceptance until maturity ; but if it is dishonored, notice and protest is necessary. Carmichael v. Pennsylvania Banli, 4 Howard, Miss. 567 ; Bank of Bennington v. Raymond, 12 Vermont, 401 ; Glasgow v. Copeland, 8 Missouri, 268. The holder is not bonnd to present before maturity; but if he does, and acceptance is refused, he is bound to give immediate notice. Lan- drum V. Trowbridge, 2 Metcalfe, 281. Upon protest for non-acceptance of a sight bill and notice given to the drawers and indorsers, they are immediately liable to the holder, without again presenting the bill on the last day of grace. Lucas v. Laden, 28 Missouri, 342. Upon non-acceptance and notice, the holder may sue the drawer without waiting for the maturity of the bill. Watson v. Tarpley, 18 Howard (S. C), 517. Whenever it is incumbent on the holder to present, if he fails to do so, he will lose not only his remedy on the bill, but also on the consideration or debt in respect of which it was given or transferred. Adams v. Darljy, 28 Missouri, 162. 300 OF THE PRESENTMENT FOR ACCEPTANCE. Presentment for acceptance is necessary, if the bill be drawn payable at sight, or at a certain period after sight. Till such pre- sentment there is no right of action against any party : and unless it be made within a reasonable time,(6) the holder loses his remedy against the antecedent parties. What is a reasonable time depends on the circumstances of each particular case, and is a mixed question of law and *fa,ct ;(c) L J although reasonable time in general, and reasonable time for giving notice of dishonor in particular, is clearly a ques- tion of law. Plaintiff, on Friday, the 9th, at Windsor, twenty miles from London, received a bill on London, at one month after sight, for lOOZ. There was no post on Saturday. It was presented on the Tuesday. The jury thought it was presented within a rea- sonable time, and the Court concurred.(c?)(l) A bill drawn by bankers in the country on their correspondents in London, payable after sight, was indorsed to the traveller of the plaintiffs. He transmitted it to the plaintiffs after the interval of week, and they, two days afterwards, transmitted it for acceptance. (S) So also held in America. Byles on Bills, 3d American edition, 229. (c) Muilman v. D'Eguino, 2 H. Bl. 565 ; Fry T. Hill, 7 Taunt. 395 (2 E. 0. L. R.); Shute V. Robins, 1 M. & M. 133; 3 C. & P. 80 (14 E. C. L. R.); s. c. ; Hellish T. Rawdon, 9 Bing. 416 (23 E.G. L. B.); 2 M. & Sc. 570, s. c; MuUick v. Radakis- sen, 9 Moore, P. 0. Oases, 46. {d) Fry v. Hill, 7 Taunt. 395 (2 E. 0. L. B.). (1) There is no fixed rule for the presentment of a bill payable at sight or a cer- tain number of days after sight; but the holder mast use due diligence to put the bill into circulation, and it must be presented within a reasonable time. Robinson V. Ames, 20 Johns. 146 ; Wallace v. Asrry, 4 Mason, 336 ; s. c, 5 Mason, 118 ; Aymar V. Beers, 7 Cowen, 705; Bachellor v. Priest, 12 Pick. 399. A bill payable on demand must be presented within a reasonable time, or the drawer will be dis- charged. Etting V. Shook, 2 Hall, 459 ; see Dumont t. Pope, 7 Blackford, 367. An order for money not drawn on time, is payable on presentment, and must be pre- sented within a reasonable time, and if not paid, the payee may have the draft pro- tested and sue the drawer at once. Gallagher v. Raleigh, 7 Indiana, 1. That a draft or check must be presented within a reasonable time, see Yeazie Bank t. Winn, 40 Maine 60 ; Hooker v. Franklin, 2 Bbnsall, 500 ; East River Bank v. God- ney, 4 E. D. Smith, 582 ; Weak v. Mad River Valley Bank, 8 Ohio (N. S.), 301 ; Phoenix Ins. Co. v. Allen, 11 Michigan, 501 ; Vantrot v. McCuUoch, 2 Hilton, 272. An order by the secretary on the treasurer of a private corporation must be presented within a reasonable time. English v. Trustees, 6 Indiana, 438. Laches ot the holder in presenting a check, will not discharge the drawer unless he is injured thereby. Morrison v. McCartney, 30 Missouri, 153. OF THE PRESENTMENT FOR ACCEPTANCE. 301 , Before it was presented to the drawees, the drawer had bftcome bankrupt ; the drawees, consequently, refused to^accept. Had the bill been sent by the traveller to the plaintiffs, his employers, as soon as he received i.t, they would have been able to get it accepted before the bankruptcy. "This is," says Lord Tenterden, "a mixed question of law and fact ; and, in expressing my own opin- ion, I do not wish at all to withdraw the case from the jury. What- ever strictness may be required with respect to common bills of exchange, payable after sight, it does not seem unreasonable to treat bills ofthis nature, drawn by bankers on their correspond- ents, as not requiring immediate presentment, but as being retain- able by the holders for the purpose of using them, within a mode- rate time (for indefinite delay, of course, cannot be allowed), as part of the circulating medium of the country." The jury con- curred with his Lordship, that the delay was not unreasonable. (e) Where the purchaser of a bill on Rio Janeiro, at sixty days' sight, the exchange being against him, kept it nearly five months, and the drawee failed before presentment, it was held, that the delay was not unreasonable. "The bill," says Tindal, C. J., "must be forwarded within a reasonable time under all the circumstances of the case, and there must be no unreasonable or improper delay. Whether there has been, in any particular case, reasonable diligence used, or whether unreasonable delay has occurred, is a mixed question of law and fact, to be decided by the jury, acting under the direction of the Judge, upon the particular circumstances of each case."(/) *But where a bill, payable after sight, was drawn in duplicate on the 12th of August, in Newfoundland, and L -^ not presented for acceptance in London till November 16, and no circumstances were proved to excuse the delay, it was held unrea- sonable, (^) the Court laying some stress on the fact that the bill was drawn in sets. Presentment should be made during the usual hours of busi- ness.(A)(l) (e) Shnte v. Bobins, 1 M. & M. 133 ; 3 0. & P. 80 (14 B. 0. L. R.), g. c. (/) Mellish T. Rawdon, 9 Bing. 416 (25 E. C. h. B,); 2 M. & Sc. 570, s. 0. (g) Straker v. Graham, 4 M. & W. 721. (A) Mar. 112 ; Parker v. Gordon, 7 Bast, 385 ; 6 Esp. 41, s. 0. ; Leftley t. Bailey, (1) Business hours, except in the case of banks, range through the whole day down to the hours of rest in the CTenlng. Cayuga Bank t. Hunt, 2 Hill, 635 ; Nehon v. Fotteral, 7 Leigh, 179. 302 OF THE PRESENTMENT FOR ACCEPTANCE. The holder may, however, put the bill into ' circulation without presenting it. "If a bill drawn at three days' sight," says Mr. Justice Buller, " be kept out in circulation for a year, I cannot say that there would be laches ; but if, instead of putting it into circu- lation, the holder were to lock it up for any length of time, I should say that he would be guilty of laehes."{i) •' But this cannot mean," says Tindal, C. J., " that keeping it in hand for any titne, how- ever short, would make him guilty of laches. It can never be required of him instantly on receipt. of it, under all disadvantages, to put it into circulation. To hold the purchaser bound by such an obligation would impede, if not altogether destroy, the market for buying and selling foreign bills, to the great injury, no less than to the inconvenience, of the drawer himself."(&) Two bills; one for 400Z., the other for 5001., were drawn from Lisbon on May 12, at thirty days after sight, indorsed to G. at Paris, and by G. to R. at Genoa, and by R. indorsed, over. They were not pre- sented for acceptance till 22d August; The jury found, and the Court concurred, that the bills were, under the circumstances^ pre- sented within a reasonable time. (?)= Illness or other reasonable cause not attributable to the miscon- duct of the holder will excuse. But the holder must present, even should the drawer have desired the drawee not to accept,(TO) though, as we shall see, the drawer in that case need have no notice of non-acceptance. (1) P^^„_^ * The presentment must be made either to the drawee himself, or to his authorized agent.(2) The holder's ser- 4 T. R. 170. In America it is held that business hours (except in the case of bankers,) range through the whole day, down to the hours of rest in the evening. See Byles on Bills, 4th American edition, 245. (s) Muilman v. D'Eguino, 2 H. Bl. 565. (k) Hellish v. Rawdon, 9 Bing. 416 ; 2 M. & Sc. 570, s. c. (l) Goupy T. Arden, 7 Taunt. 160 (2 E. C. L. R.) ; 2 Marsh, 454, s. o. In Ame- rica it is held, that though put into circulation it must still be presented within a reasonable time. Byles on Bills, 4th American edition, 244. (m) Hill v. Heap, D. & R., N. P. 0. 57. (1) One partner may waive the presentment of a bill, drawn by the partnership without special authority. Bank v. Lonergaai's Adm., 21 Missouri, 46. When the words " acceptance waived" are embodied in a bill, the ordinary proceedings on acceptance are dispensed with, and merged into those of payment or non-payment. Webb V. Hears, 9 Wright, 222. (2) Sharpe v. Drea, 9 Indiana, 281. OF THK PRESENTMENT FOR ACCEPTANCE. 303 vant called at the drawee's residence, and showed the bill to some person in the drawee's tan-yard, who refused to accept it ; but the witness did not know the drawee's person, nor could he swear that the person to whom he offered the bill was he, or represented him- self to be so. Lord BUenborough : " The evidence here offered proves no demand on the drawee, and is, therefore, insufficient, "(m) When the bill is presented, it is reasonable that the drawee should be allowed some time to deliberate whether he will accept or no. It seems that he may demand twenty-four hours for this purpose (and that the holder will be justified in leaving the bill with him for that period) ; at least, if the post do not go out in the interim, (o) or unless, in the interim, he either accepts or declares his resolution not to accept, (p) If more than twenty-four hours be given, the holder ought to inform the antecedent parties of it.(g') If the owner of a bill who leaves it for acceptance, by his negli- gence, enable a stranger to give such a description of it as to obtain it from the drawee, without negligence on the drawee's part, the owner cannot maintain trover for it against the drawee. (/•) In case the bill is directed to the drawee at a particular place, it is to be considered as dishonored if the drawee has absconded. (8)(1) But, if he have merely changed his residence, or if the bill is not directed to him at any particular place, it is incumbent on the holder to use due diligence to find him out. And due diligence is a question of fact for the jury.(^) If the drawee be dead, the holder should inquire after his personal representative, and, pro- vided he live within a reasonable distance, present the bill to him.(M) (n) Cheek v. Roper, 5 Bsp. 175. (0) Marius, 15 ; Com. Dig. Meroh. P. 6; Bellasia v. Hester, 1 Ld. Eaym. 281. {p) Bayley, 194, 6th ed. {q) Ingram T. Foster, 2 Smith, 242. (r) Morrison v.' Buchanan, 6 0. & P. 18 (25 E. C. L. R.). («) Anon., 1 Ld. Eaym. 743. (t) Collins V. Butler, 2 Stra. 1087 ; Bateman t. Joseph, 12 East, 433. («) Chitty, 9th ed. 357. (1) Ratcliff V. Planters' Bank, 2 Sneed, 425 ; Union Bank v. Fowlkes, Ibid.-555. Where the bill is addressed to the drawee at a particular house, the presentment there is sufficient, unless the holder knows the true residence or place of business. Pierce v. Struthers, 3 Casey, 249. 304 OF ACCEPTANCE. In an action against the drawer for non-acceptance, it is not sufficient to allege mere non-acceptance ; presentment for accept- ance must be alleged.(a;) [*178] *CH AFTER XIII. OF ACCEPTANCE. MEANINO OF THE WORD . . . 1Y8 LIABILITY OF DRAWEE BEFORE AC- CEPTANCE 178 A DRAFT DISPENSINS WITH ACCEPT- ANCE '.179 LIABILITY OF A BANKER AT WHOSE BANK A BILL IS MADE PAYABLE BY THE ACCEPTOR .... 1T9 LIABILITY TO THE CnSTOMBE . . 179 LIABILITY OF THE BANKER TO A HOLDER 179 BY WHOM IT MAY BE GIVEN . . 180 NOT BY A SERIES OF ACCEPTORS . 180 WHEN 181 BEFORE BILL FILLED UP . . .181 NOT BEFORE BILL IN EXISTENCE . 182 AFTER DUE, OR AFTER PRIOR REFUSAL TO ACCEPT 182 PRESUMPTION AS TO TIME OF AOOEPT- ANOB 183- ACCEPTANCE OF INLAND BILLS MUST BE IN WRITINS ON THE BILL . .183 WHAT WILL AMOUNT TO AN ACCEPTANCE IN WBITINe ON THE BILL . . 183 WHAT WILL AMOUNT TO AN icCEPT. ANOE OF FOREION BILL . . .184 A PROMISE TO PAY .... 184 TO WHOM IT MAY BE MADE . . 184 IS IRREVOCABLE .... 185 WHAT ELSE AMOUNTS TO ACCEPTANCE OF A FOREIGN BILL . . . 185 WHAT ENGAGEMENT HOLDER MAY RE- QUIRE OF ACCEPTOR . . . 186 WHAT SHOULD BE HIS CONDUCT IN CASE OF QUALIFIED ACCEPTANCE . . 186 QUALIFIED ACCEPTANCE . . .186 CONDITIONAL ACCEPTANCE . . 18G PARTIAL OR VARYING ACCEPTANCE . 187 PAYABLE AT PARTICULAR PLACE . 188 PRESENTMENT FOR PAYMENT THERE . 188 EFFECT OF TWO ACCEPTANCES ON THE SAME BILL 188 DELIVERY OF NOTICE NECESSARY TO COMPLETE ACCEPTANCE . . .189 CANCELLATION OF ACCEPTANCE BY DRAWEE 189 BY BANKER 189 BY OTHER PARTIES . . . .190 LIABILITY OF ACCEPTOR . . .190 HOW DISOBARGBI> , . . .190 BY WAIVER ..... 190 CANCELLATION BY THE HOLDER . . 192 SECURITY BY SPECIALTY . . . 192 PLEADING 192 WHAT ACCEPTANCE ADMITS . .192 WHERE DRAWEE PRECLUDED FROM DIS- PUTING ACCEPTANCE . . . 194 AccEP>TANCB, in its ordinary signification, is an engagement by the drawee to pay the bill when due, (a) in money. (S) {x) Mercer v. Southwell, 2 Show. 180. (o) Clark v. Cock, 4 Bast, 72. (A) Russell V. Phillips, 19 L. J., Q. B. 297 ; 14 Q. B. 891 (68 E. 0. L. E.)i ^ o. OF ACCKPTANCB." 305 Before acceptance the drawee is iiot liable to the holder,(c)(l) *An instrument drawn by A. upon B., requiring him to rsH^yg-i pay to the order of C. a certain sum at a certain time, "without acceptance," is still a bill of exchange, and may be so described in an indictment for forgery.((Z) A bill is often by the acceptor made payable at a bankers. By such a direction on a bill the biinker incurs liabilities to his cus- tomer, and may incur a liability to the holder. We have already seen that, without acceptance, a banker may be liable to his customer, if, having sufficient funds, he neglect to pay his checks. So a banker, at whose house a customer accept- ing a bill makes it payable, is liable to an action at the suit of that customer, if he refuse to pay it, having at the time of presentment funds sufficient, and having had those funds a reasonable time, so that his clerks and servants might know it.(e) Yet if he do pay a holder whose title depends on a forged in- dorsement, he cannot charge his customer with the payment.(/) But it has been said by thci Court of Exchequer Chamber, that he is protected if he pay any one who can give a valid discharge. (^) Yet, notwithstanding this, it may well be doubted whether, in the case of a bill made or become payable to bearer, he is in as good a situation as an ordinary transferee^ whose title is not affected by mere negligence. For the banker, as agent for the customer, undertakes to conduct himself with reasonable care. An honest but negligent payment, which may. entitle the banker to the bill as against the true owner, may be insufficient to enable him to charge his customer. (c) See Frith v. Forbes, 31 L. J., Chanc. 793 ; 32 L. J., Chanc. 10, s. o. (d) Miller v. Tliomson, 3 M. & G. 576 (42 E. C. L. R.) ; Reg. v. Kinnear, 2 M. & Rob. ll'?. (e) See Whitaker v. The Bank of England, 6 0. & P. YOO (25 E. 0. L. R), and 1 C, M. & R. 744 ;, 1 Gale, 54„ s. c. ; Rolin v. Steward, 14 C. B. 595 (78 B. C. L. R.) ; Robarts v. Tncker, 16 Q. B. 560 (71 E. C. L. R.). (/) Roljarts v. Tucker, 16 Q. B. 560 (71 B. 0. L. R.j. (g) Ibid. (1) The holder for value of a bill drawn in pursuance of a promise to accept by the drawee, and taken on the faith of such promise, may maintain an action in his own name against the drawee on his refusal to accept. Barney t. Newcomb, 9 Gushing, 46. 20 306 'OP ACCEPTANCE. Where a bill is accepted payable at a banker's, though money had been remitted by the acceptor to the banker for the express purpose of paying the bill, the banker is not liable to the holder in an action for money had and received, unless he have assented to hold the money for the purpose for which it was remitted.(A,) But where there is anything in the conduct or situation of the banker r*1 sm '"'^^^^ amounts to *an assent to hold the remittance upon trust to discharge the bill, he is liable to the holder.(i) A bill can only be accepted by the draw6e,(A) and not by a stranger, except for honor.(Z) Where, indeed, the bill was not addressed to any one, but only indicated the place of payment, the acceptor was held liable as having admitted himself to be the party pointed out by the place of payment, (m) But this decision goes to the very verge of the law. (n) If the drawee be incompetent to contract, as, for example, by reason of infancy or coverture,(o) the bill may be treated as dis- honored. We have already seen(^) that one partner may, by his accept- ance, bind his copartners. But, if a bill be drawn upon several persons not in partnership, it should be accepted by all, and, if not, may be treated as dishonored. (g-) Acceptance will, however, be binding upon such of them as do acoept.(r) There cannot be two or more separate acceptors of the same bill not jointly responsible. A. refused to supply B. with goods,-unles3 (A) Williams t. Ererett, U East, 582; Yates v. Bell, 3 B. & Aid. 643 (5 B. C. L. R.) ; Wedlake t. Hurley, 1 C. & J. 83. (i) De Bernales v. Fuller, 14 East, 590, n.; 2 Camp. 426; and ace the observa- tions of Abbott; C. J., on this case, in Yates v. Bell, 3 B. & Aid. 643 (5 E. C. L. K.). (k) Nichols V. Diamond, 9 Exch. 157. Unless he have recognized the acceptance as his. See Lindus v. Bradvpell, 5 C B. 583 (5T E. C. L. R.). (I) Polhill V. Walter, 3 B. & Ad. 114 (23 B. 0. L. R.) ; 1 L. J., K. B. 92 ; East- wood >v. Bairi, 28 L. J., Ex. 74 ; 3 H. & N. 738, s. u. ; Davis v. Clarke, 13 L. J., Q. B. 305; 6 Q. B. 16 (51 E. C. L. R.), s.o. ; see Jenkins t. Hutebinaon, 18 L. J., Q. B. 27.4; 13 Q. B. 744 (66 E. 0. L. R.;, s. o. (m) iGray.v. Milner, 8 Taunt: 739 (4 E. C. L. R.). («) See the observations of Patteson, J., in Davis v. Clarke, supra, a^id of Mar- tin, B., in Eeto v. Reynolds, 9 Exch. 410. (o) Chit. 9th ed. 283. (p) Chapter ii. (j) Mar. 16 ; Dupays t. Shepherd, Holt's R. 297 ; Marius, 64. (r) B. N. P. 270 ; Bayley, 58 ; Owen v. Von Uster, 10 C. B. 318 (70 B. C. L. R.) ; Nichols -v. JDiamond, .9 Exch. 154.- OF ACCEPTANCE. 307 C. would become his surety. C. agreed to do it. Goods to the value of 157Z. were accordingly sold by A. to B. For the amount A. drew on B., and the bill was accepted both by B. and C, each writing his name on it. Lord Ellenborough : "If you had declared that, in consequence of A. selling the goods to B., C. undertook that the bill should be paid, you might have fixed C. by this evi- dence. But I know of no custom or usage of merchants, according to which, if a bill be drawn upon one man, it maji- be accepted by two ; the acceptance of the defendant is contrary to the usage and custom of merchants. A bill must be accepted by the drawee, or, failing him, by some one for *the honor of the drawer. r*i gj-i There cannot be a series of acceptors. The defendant's undertaking is clearly collateral, and ought to have been declared upon as such."(s) But, although there can be no other acceptor after a general acceptance of the drawee, it is said that, when a bill has been accepted supra protest, for the honor of one party, it may, by another individual, be accepted supra protest, for the honor of another. (() We shall, hereafter, consider the subject of acceptance supra protest in a distinct Chapter. A bill may, as we have seen,(M) be addressed to the drawer himself and accepted by him ; but it is then rather a promissory note than a bill of exchange. , We have already seen that the signature of a drawer, maker, or indorser, on a blank form, delivered to be filled up as a negotiable instrument, will bind them respectively ; so an acceptance, written on the paper before the bill is made, and delivered by the acceptor, will also charge the acceptor to the extent warranted by the stamp(2;j(l) It is not even necessary that the bill should be drawn (s) Jackson v. Hudson, 2 Camp. 447. («) Jaokson v. Hudson, 2 Camp. 447, n. ; Beawes, 42. fw) Chapter vii. (a:) Though the bill be antedated, Armfield v. Armport, 27 L. S., Exch. 42 ; and in America, where there is no stamp, the amount for which the blank may be filled up is unlimited. Byles on Bills, 4th American edition, 250. (1) A person signing his name on a blank paper, and delivering it to another, authorizes him to fill up the blank with any sum. Bank of Limestone t. Penick, 5 Monr. 25 ; Van Duzer v. Howe, 21 New York, 531. Where a note is signed and de- livered, with a blank left for the sum payable, though the first holder is restricted as to the amount to be inserted, yet, if the note comes into the hands of another , who, without notice of the restriction, fills the blank with a larger sum, the maker will be bound by it. Bank of Commonwealth v. Curry, 2 Dana, 142 ; Moody v. Threlkeld, 13 Georgia, 55 308 OF ACCEPTANCE. by the same person to whom the acceptor handed the blank accept- ance.(^) And where a blank acceptance was filled up after the lapse of twelve years, and, as the jury found, after the lapse of a reasonable time, the acceptor was held liable to a Jo»i(^ _/?&. in- dorsee. (2) But it is conceived that the case of a blank acceptance not delivered at all, but lost or stolen, at least without any negli- gence of the writer, is distinguishable.(a) *An acceptance for value, before the bill is filled up, is L "-I irrevocable. Notice that the acceptance was in blank should put the holder on inquiry. (J) It was formerly held (in cases where an acceptance in writing on the bill was not necessary), that a prom'ise to accept before the hill was made, amounted to an acceptance. Thus, a promise by the defendants, that they would accept such bills as the plaintifiF should, in about a month's' time, draw on the defendant for 800Z., has been held an acceptance of such bill subsequently drawn. (c) But it was said that a subsequent holder could not avail himself of such an engagement, unless it was communicated to him at the time he took the bill. "A promise to accept," says Gibbs, C. J., "not com- municated to the person who takes the bill, does not amount to an (y) -Schulfz V. Astley, 2 Bing. N. 0. 544 (29 E. C. L. R.) ; 2 Scott, 815 ; 1 Hodges, 525 ; 7 C. & P. 99 (32 E. C. L. R ), s. 0. The acceptor is estopped as against "a transferee for "value to. deny the regularity of the acceptance. In America it is held, that if the blank paper come into the hands of a holder without notice, he may fill up the blank with a larger sum than the original holder was authorized to insert. See Byles on Bills, 4th American edition, 250. , (a;) Montague V. Perkias, 22 L. J.,C. P. 188. (a) See the question put by Cresswell, J., tp counsel in Montague t. Perkins, 22 L. J., 0. P. 189, to which the answer of counsel does not appear satisfiictory. See, howcTer, the observations ot the Court of C P. in Ingham v. Primrose, 28 L. J., 0. P. 295 ; 1 0. B., N. S. 82 (97 B. C. L, R.), s. 0. Perhaps the obligation created by blank makings, acceptances, and indorsements of bills, checks, or notes depends on the principle of estoppel, and not on any peculiarity of negotiable paper. On this ground it is put by Lord Mansfield in Russell v. Lanstaffe, and by Lord Chief Justice Tindal in Shultz v. Astley, ubi supra ; but see the observations of William J., in Bx parte Swann, 7 0. B. 447 (62 E. C. L. R.), and Martin, B. k Channell, B;, in Swan V. North British Australian Company, 31 L. J., Exch. 436. On the question whether the principle of estoppel can be applied to a deed improperly filled up, the Courts of Common '.'ieas and of the Exchequer were equally divided. Ibid. In the Exche- quer Chamber it was held that it could not. 32 L. J., Exch. 273. (A) Hp,tch v. Sear]es,'2 Sm. & G. 147 ; 24 L. J., Ch. 22, s. c. (c) Pillans v. Van Microp, 3 Burr. 1663 ; Pierson v. Dunlop, Cowp. 571 ; Mason V. Hunt, Doug, 284, 287. ' OF ACCEPTANCE. 309 acceptance ; but, if the person be thereby induced to take a bill, he gains a right equivalent to an actual acceptance, against the party who has given the promise to accept."((i) But it is now settled that there cannot be an oral acceptance of a non-existing bill,(e) although the bill be discounted by the drawer on the faith of a promise to accept.(/) It has been decided, since 1 & 2 Geo. 4, c. 78, that an acceptance may be written before the bill is drawn, though that statute makes it essential to the acceptance of an inland bill, that it should be in writing on Huch bill ; atid it will be no variance, though the declaration state the drawing to have been first and the acceptance afterwards. (^)(1) {d) Milne t. Prest, 4 Camp. 393 ; Holt, N. P. 181, s. 0., evidently an inaccurate report in Holt, see 11 M. & W. 390 ; Johnson v. OoUings, 1 East, 98. («) Johnson v. CoUings, 1 East, 98 ; Bank of Ireland v. Archer, 11 M. & W. 383. But in general this is otherwise in America. Byles on Bills, 4th American edition, 250. (/) Ibid. {g) MoUoy v. Delves, Y Bing. 428 (20 E C. L. R.) ; 5 M. & P. 275 ; 4 0. & P. 492 (19 E. C. L. R.), s. c. And it is probable the same interpretation will be put on the present act 19 & 20 Vict. c. 97, which requires the signature of the acceptor. (1) A promise in writing made before a bill is drawn to accept the bill, will not be held to amount to an actual acceptance, unless the bill is clearly described and identified from other bills. Ulster County Bank v. McParlan, 3 Denio, 553. A letter written by the drawee of a bill of exchange, before or after the drawing of the bill, promising to accept or protect the bill, may operate as an acceptance, although the holder may not be apprised of such letter, and thereby induced to receive the bill. Eead v. Marsh, 5 Monroe, 8. A letter written within a reasonable time before or after the date of a bill, intelligibly describing it, and ■ promising to accept it, is, if shown to one who takes it on the credit of the letter, a virtual accept- ance, binding on the promisor. Payson v. Ooolidge, 2 Gallison, 233 ; s. c, 2 Whea- ton, 66 ; Goodrich v. Gordon, 15 Johns. 6 ; Schimmelpennick v. Bayard, 1 Peters, 265 ; Towsley v. Sumrall, 2 Peters, 181 ; Wilson v. Clements, 3 Mass. 1 ; Storer v. Logan, 9 Mass. 55 ; McKim v. Smith, 1 Hall's Law Journal, 486 ; Parker v. Grule, 2 Wendell, 545 j 5 Wendell, 414; Boyce v. Edwards, 4 Peters, HI; Williams v. Winans,' 2 Green, 339 ; Eussel v. Wiggin, 2 Story, 213 ; Bayard v. Lathy, 2 McLean, 462 ; Kennedy v. Geddes, 8 Porter, 263 ; 3 Alabama, 581 ; Ulster Bank v. McFarlan, 5 Hill, 433. An authority given by A. to B. to draw bills on him, is virtually an accept- ance of any bills drawn in conformity with such authority. "Van Keimsdyk v. Kane, 1 Gallison, 630 ; Banorger v. Hovey, 5 Mass. 23 ; Mayhew v. Prince, 1 1 Mass. 55 ; Wal- lace V. Agry, 4 Mason, 336 ; Bissell v. Lewis, 4 Michigan, 450. Where one gave written authority to another as his agent to adjnst certain business, and draw on him for the moneys necessary, it was held to amount to an acceptance by the principal of drafts drawn with the assent of the agent upon him. Gates v. Parker, 43 Maine, 544. When an implied acceptance, based on an autho'rity to draw, previously given, is relied on, a recovery cannot be' had against a party as acceptor by virtue of such authority, 31G OF ACCEPTANCE. A bill may be accepted after the period at which it is made pay- able has elapsed, and the acceptor will then be liable to pay on i unless it be proved that the party discounting the bill, before or at the time of so doing, saw or knew of the authority, and discounted on the faith thereof. Lewis v. Cramer, 3 Maryland, 265. A bill drawn by one upon himself is to be regarded as an accepted bill. Cunningham t, Wardell, 3 Fairfield, 466. No formal acceptance of a bill of exchange drawn by a corporation on itself is necessary, the act of draw- ing being deemed an acceptance of it. Hasey T. White Pigeon Beet Sugar Com- pany, 1 Douglas, 193. The act of drawing a bill by one partner, in his own name, on the firm of which he is a member, for the use of the partnership, is in law an acceptance by the drawer in behalf of the firm, and an action may be maintained against the firm as on an accepted bill. Dougal v. Cowles, 5 Day, 511. By the Revised Statutes of New York, an acceptance is void unless made in writing. But prior to this provision, a parol agreement to accept a bill to be drawn in futuro, could not be enforced by an indorsee who did not take the bill on the faith of such agreement. Ontario Bank v. Worthington, 12 Wendell, 593 ; McEvers v. Mason, 10 Johns. 207 ; Goodrich v. Gordon, 15 Johns. 6. See Martin v. Bacon, 2 Rep. Const. Court, 132. I A mere verbal promise to accept a bill of exchange not yet drawn, is not such an acceptance as will in law bind the acceptor, even if made to the person in whose favor the bill is drawn. Kennedy v. Geddes, 8 Porter, 263. By the English law, a promise to accept a non-existing bill of exchange, even though it be taken by the holder upon the faith of that promise, does not amount to an acceptance of the bill when drawn in favor of the holder ; but it has been held otherwise by the Supreme Court of the United States. Yet if the bill be payable after sight, and not after date, such a promise has never been held, in either country, to be an acceptance of a non- existing bill. Ooolidge v. Payson, 2 Wheaton, 66 ; Wildes v. Savage, 1 Story, 22 J Russell v. Wiggin, 2 Story, 213. In the former of these cases, Judge Story said : " It is, perhaps, to be lamented that the doctrine of such virtual acceptances ever was established ; and if the question had been entirely new, I am well satisfied that it would not have been recognized as fit to be promulgated, it being at once unsound in policy and full of inconvenience. But the Supreme Court yielded, as did the Judge who decided that case in the Circuit Court, to what seemed at that time the true result of the English authorities upon an important practical com- mercial question. I am not sorry to find that professional opinion has now settled down in England againt the doctrine; although there is no pretence to say, that, up to this very hour, there has been any formal decision in Westminster Hall against it. But it does not appear to me that the doctrine ever was applicable or could be applied to any bills of exchange except such as were payable on demand or at a fixed time after date. Where bills are drawn payable at so many days after sight, it is impracticable to apply the doctrine ; for there remains a future act to be done, the presentment and sight of the bill, before the period for which it is to run, and at which it is to become payable, can commence, whether it be accepted or be dis- honored. How can the time be calculated on such a bill before it is presented ? If a letter is written, promising to accept a non-existing bill, to be thereafter drawn, at six months' sight, when is the acceptance to be deemed made? At the date of the bill ? Certainly not : for that would be at war with the obvious intent of the parties, which plainly is, that the acceptance shall be on a future sight of the bill. OF ACCEPTANCE. 311 demand, yet if the declaration state the acceptance to be accord- ing to its tenor and effect, those *words will be but sur- plusage. (A)(1) It may also be accepted after a previous L -I refusal to accept. (i)(2) It sometimes becomes material to inquire at what time the bill was accepted. The presumption is that it was accepted before maturity and within a reasonable time of its date.(^) (A) Jackson v. Pigott, 1 Ld. Raym. 364; Mutford v. Walcot, 1 Ld. Raym. 574; 1 Salk. 129, s. 0. ; Stein v. Yglesias, 5 Tyr. 172 ; 1 0. M. & R. 565 ; I Gale, 98, s. 0. (i) Wynne v. Raikea, 5 East, 514; 2 Smith, 89, s. c. (A) Roberts v. Bethell, 12 0. B. 778 (74 B. 0. L. R.). If it is said that the acceptance is to be treated as made when the bill is actually presented for acceptance and it is dishonored by the drawee, it Is as plain that we set np a prior intent or promise against the fact. Upon what ground can a court say, when a party promises to do an act in futuro, snch, for example, as to accept a bill when it shall be drawn and presented to him at a future time, that his promise overcomes his act at that time? That his refusal to perform his promise amounts to a performance of it? It is quite another question whether the holder, who has taken such a bill upon the faith of such a promise, may not have some other remedy, either at law or in equity, for the breach of it, against the promisor. My judgment is, that the, doctrine of a virtual acceptance of a non-existing bill, by a prior promise to accept it, when drawn, has no application to a bill drawn payable at some fixed period after sight ; for it then amounts to no more than a promise to do a future act. I have looked into the authorities, and do not find in any one of them, that the bill drawn, and to which the doctrine was applied, was a bill drawn payable at or after sight." 'A parol promise to accept a draft, founded on no new considera- tion, is not binding, either as an acceptance or a binding promise to accept. Stro- hecker v. Cohen, 1 Speers, 349. A promise to accept a bill is equivalent to an acceptance, not only as to the drawer, but as to every party who takes the bill on the faith of the promisor. Steman v. Harrison, 6 Wright, 49. A promise to accept without more, covers only bills payable at the payee's or drawees place of business. Michigan State Bank v. Leavenworth, 2 Williams, 208. A parol promise to pay a bill when it matures is an acceptance. Spaulding v. Andrews, 12 Wright, 411. Authority to draw " on us or either of us," " and we hereby jointly and severally hold ourselves accountable for the acceptance and payment of such drafts," binds the signers, jointly and severally, to the payment of acceptances made by either. Michigan State Bank v. Pecks, 2 Williams, 200. (1) Acceptance after time of pa^'ment is binding. Williams v. Winans, 2 Green, 339. The fact of a bill's having been protested does not prevent its being after- wards accepted by the drawee. Stockwell v. Bramble, 3 Indiana, 428. A drawee who accepts after the bill has been indorsed over is liable to the indorsee. Bank of Louisville v. Ellery, 34 Barbour, 630. (2) If on protest for non-acceptance of a bill payable at so many days after sight, the drawer accepts the next day and fails before the day of payment, the drawer is not liable, if he had no notice of the non-acceptance. Mitchell v. De Grand, 1 Mason, 176. 312 ^ OF ACCEPTANCE. The statute 3 & 4 Anne, c. 9, s. 5, expressly enacts, that no acceptance of any inland bill of exchange shall be sufficient to charge any person whatever, unless it be underwritten, or indorsed in writing on the bill. This statute, however, seems to be very loosely and obscurely drawn. Two Chief Justices accordingly held, on considering the whole of the act, that a verbal acceptance was binding, notwithstanding these words; which decision was finally settled to be law by Lord Hardwicke.(Z) It had often been lamented by the Judges, that anything short of a writing on the bill should have been considered as an acceptance ; and at length, in accord- ance with the opinions of the Bench, and, perhaps, of the Legisla- ture, in framing the last-mentioned act, the 1 & 2 Geo. 4, c. 78, s. 2, enacted, that no acceptance of any mland{m} bill of exchange shall be sufficient to charge any person, unless such acceptance be in writing on such bill, or, if there be more than one part of such bill, on one of the said parts. This statute, however, does not apply to foreign bills, and does not require the acceptance to be signed. Finally, the 19 & 20 Vict. c. 97, s. 6, enacts, that no ac- ceptance of a bill, inland or foreign, made after the year 1866, shall charge any person, unless in writing on the bill, and signed by the acceptor, or some person duly authorized by him. The usual mode of making such an acceptance on the bill was, even before the last-mentioned statute, by writing the word " ac- cepted," and subscribing the drawee's name.(l) Signature was not essential to a written acceptance within the statute 1 & 2 Geo. 4, c. 78, but it was a question for the jury, whether the acceptance was complete.(m) If the bill *be payable after sight, the L J day when accepted should also be expressed. But the (I) Lumley t. Palmer, 2 Str. 1000 ; Rep. teinp. Hardwioke, 74, s. o. (m) As to what is an inland and what a foreign bill, see the- Chapter on Foreign mis. («) Dufaur v. Oxenden, 1 M. & E. 90. (1) If one refuses to accept an order, and bis refusal is understood between him and the payee, yet if he write on the order what may fairly be construed as an ac- ceptance, he is bound as an acceptor against a bond fide holder for value. Galla- gher V. Black, 44 Maine, 99. The liability of the acceptor arises from and is limited by the terms of his acceptance. As the language of such acceptance is his own, it is to be taken most strongly against him. Sylvester v. Staples, 44 Maine, 496. . A receipt of part of the snm drawn for, indorsed on an order in the handwriting of the drawee, and signed by the payee, only relates to the amount received, and implies no acceptance of the order for the balance. Basset v. Haines, 9 California, 260. OF ACCEPTANCE. 313 drawee's name alone, written on any part of the bill, was a suffi- cient acceptance ; so, without any name, the word " accepted," "presented," "seen," the day of the month, or a direction to a third person to pay it.(o) Where one banker held a check drawn on another banker, presented it after four o'clock, and it was not paid, but, according to the practice of the London bankers, a mark was put on it, to show the drawer had eifects, and that it would be paid ; this marking was held to amount to an acceptance payable next day at the clearing-house.(ji7) It is not necessary, in pleading the acceptance of an inland bill, to aver that the acceptance was in writing, or signed. (g') It will be observed, that the 1 & 2 Geo. 4, c. 78, so far as it re- lates to acceptances in writing, does not extend to foreign bills, and the late statute, 19 & 20 Vict. c. 97, s. 6, extends only to ■ foreign bills after the year 1856, and probably not to foreign bills accepted abroad, where, by the law of the place, a written accept- ance may not be necessary. It is proper, therefore, to consider the state of the law previously to the late enactments in respect of acceptances not on the bill, as the former law may still apply to acceptances of many bills drawn or accepted abroad. ' We have already seen,(r) that a. promise to accept a bill, not drawn, will not be available as an acceptance; but a promise, written or oral, to pay or accept an existing foreign bill, is, at common law, of itself an acceptance. (s)(l) (0) Anoa , Comb. 401 ; Powell v. Monnier, 1 Atk. 611 ; Moor v. Withy, B. N. P., 270 ; Diifaur v. Oxenden, 1 M. & R. 90. (;;) Robson v. Bennett, 2 Taunt. 388. (q) Chalie T. Belshaw, 6 Blng. 529 (19 E. C. L. R ) ; 4 M. & P. 275, s. o. (r) Note (e), p. 182. (s) Clarke v. Cock, 4 Bast, 57 ; Cox v. Coleman, Bayley, 6th ed. 176 ; Wynne v. Raikes, 5 East, 514; Mendizabal t. Machado, 6 C. & P. 218 (25 E. C. L. R.) ; 3 Moore & S. 841, s. 0. ; see the American authorities to the same effect, Byles on Bills, 3d Adierican edition. As to what amounts to a promise to accept, see Nichol- son V. Ricketts, 29 L. J., Q. B. 55. (1) A parol acceptance will bind the acceptor. Leonard t. Mason, 1 Wendell, 522 ; Williams v. Winans, 2 Green, 339 ; Walker v. Ljde, 1 Richardson, 249 ; Ward v. Allen, 2 Metcalfe, 53 ; Barnet v. Smith, 10 Poster, 256 ; Stockwell v. Bramble, 3 Indiana, 428; Bird v. McElwaine, 10 Ibid., 40; Launau v. Smith, 7 Gray, 150; Ar- nold V. Sprague, 34 Vermont, 402. Acceptance may be implied. Bank of Rutland 314 OF ACCEPTANCE. And such an acceptance might he given to the drawer, or any other party to the hill, after it had heen indorsed away, and even after it had become due.(<) It might even be given to a person by whose direction and on whose account the bill was drawn, though he were no party to the bill, and although the bill had been pre- viously indorsed.(M) Such a *promise would have enured '- -'to the benefit of the indorsee, and of all other parties. It could not, therefore, be revoked by the drawee, though the party to whom it was given consented to the revocation, and though neither the indorsee nor any other party to the bill had notice of the acceptance, (a;) Where the drawee answered an application to accept the bill, by saying, "the bill should have attention," it was held that these words were ambiguous, and did not amount to an acceptance ;(y) [t) Powell v.. Monnier, 1 Atk. 611 ; Wynne v. Raikes, 5 East, 514. («) Pairlee v. Herring, 3 Bing. 625 (11 B. C. L. R.) ; Grant v. Hunt, 14 L. J., C. P. 106, and 1 0. B. 44 (50 B. C. L. R.), s. 0. {«) Grant v. Hunt, ibid. (2/) Rees y. Warwick, 2 B. & Aid. 113 ; 2 Stark. 411 (3 B. 0. L. R.), s. o. ; unless by the course of dealings it has been usually considered such. T. Woodruff, 34 Vermont, 89. A creditor drew on his debtor, and upon settlement allowed the amount thereof though the draft had never been accepted : the drawee was held liable to the holder of the bill. Bank v. Hill, 2 t. Texas, 155. Adrawer of a bill of exchange may charge himself as acceptor by writing his name over the face of the bill. Spear v. Pratt, 2 Hill, 582. There is no rule requiring that the bill should be actually shown to the drawee in order to a valid and binding accept- ance ; it is enough if when applied to for acceptance, he is Enabled, by seeing the bill or otherwise, to give an intelligent answer. Fisher v. Beckwith, 19 Vermont) 31. The drawee of an order for a seaman's share of the proceeds of a whaling voy- age declined to accept it, but took the bill and promised to try to save the amount for the payee, if the drawer consented. The drawer on his return refused to assent. Held, that the bill had not been accepted. Parkhurst v. Dickerson, 21 Pickering, 307. A promise to " accord a credit" for £3000 on the usual terms and conditions which were to accept bills at ninety days' sight, was held not to amount to an ac- ceptance. Carniger v. Morrison, 2 Metcalfe, 381. A verbal promise to pay a bill accompanied by a refusal to accept it, is no acceptance, though the drawer have funds in his hands. Luff v. Pope, 5 Hill, 413. Where an order was presented for acceptance, and the drawee refused to accept, but promised to pay the person in whose favor it was drawn by a given day, it was held, that the latter could maintain no action against the drawee, though he had funds of the drawer in his hands at the time, and ought injustice to have accepted. Pope V. Luff, 1 Hill, 577. OF ACCEPTANCE. ~ 315 SO, an answer by the drawee, " there ia your bill, it is all right," is no acceptance. (2) The mere detention of a bill by the drawee would not, it seems, amount to an acceptance. '^ In support of this doctrine," says Abbott, C. J., "have been cited the opinions of some great and learned persons, entitled, undoubtedly, to the highest respect. It is not, however, supported by the authority of any decided case ; for the cases have all been decided upon very special circumstances. "(a) Drawee kept a bill drawn on him, which he was requested to accept and forward, a considerable time after he had been told by tiie payee that he should consider his deten- tion of the bill as tantamount to an acceptance. He afterwards admitted that he had neglected to write an acceptance upon it, thinking it of no consequence, as he meant to pay it. Held, that, under the circumstances, the detention amounted to an accept- ance. (S) Where a bill, being presented and left for acceptance, was refused acceptance by the drawee, but remained afterwards for a considerable time in, his hands, and was ultimately destroyed by him, held by three Judges {dissentiente Lord Ellenborough, C. J.), that the drawee was not thereby liable as the acceptor of the bill.(c) But, if the drawee had not previously refused acceptance, then, it seems, destroying the bill would have been such an act of owner- ship as would have amounted to acceptance. (cZ) On the whole, it should seem that any conduct of the drawee, by which he intended the holder should understand that *he meant to accept or r-^.-, q„-. pay, would have amounted to an acceptance of any exist- ing foreign bill.((3) A letter written by the drawee to the drawer might amount to an acceptance, though the drawer have been dead, and the drawee unacquainted with the fact.(/) The holder is now entitled to require from the drawee an abso- lute engagement in writing, duly signed, to pay in money accord- ing to the tenor and eflfect of the bill, unincumbered with any («) Powell V. Jones, 1 Eep. 11. See Andersoa v. Hick, 3 Camp. 179 ; Anderson T. Heath, 4 M. & Sel. 303 ; Hoare v. Dresser, Dom. Proc, 1 House of Lords Oases, 290; Reynolds t. Peto, 11 Exch. 418. (ffi) Mason v. Barff, 2 B. & Aid. 26. (fi) Harvey v. Martin, 1 Camp. 425 ; Bayley, 6th ed. 193 ; and see Trimmer v. Oddie, there cited. (e) Jeune v. Ward, 1 B. & Aid. 653 ; 2 Stark. 326 (3 E. C. L. R.), s. 0. (d) Ibid. (e) Billing y. Devaux, 11 L. J., C. P. 38; 3 M. & G. 565, s. 0. (/) Ibid. 316' OF ACCEPTANCE. condition or (][ualifications. A general acceptance, without any express words to restrain it, will be such an absolute acceptance. If the drawee oflFer a qualified acceptance, the holder may either refuse or accept the offer. If he mean to refuse it, he may note the bill, and should give notice of the dishonor to the antecedent parties. If he intend to acquiesce in it, he must give notice of the nature of the acceptance to the previous parties, and, it should seem, must obtain their consent,(5') or they will be discharged ;(A) but he must not protest or note the bill, or give a general notice of dishonor, for he would thereby preclude himself from recovering against; the acceptor.(^■)(l) Qualified acceptances are of two kinds: first, conditional; and secondly, partial, or varying from the tenor of the bill. Whether an acceptance be conditional or not, is a question {g) Perhaps it might not be necessary to obtain the consent to an acceptance for part of the amount. It has been doubted whether an acceptance payable at a particular place, and not otherwise or elsewhere, can be safely taken without the consent of the prior parties since 1 & 2 Geo. 4, c. 78. (A) Chitty on Bills, 9th ed. 300 : Marius, 68, 85 ; and see the observations of Bay- ley, J., in SebagT. Abitbol, 4 M. & Sel. 462 ; 1 Stark. T9, a. c. ; and the answers of the Judges to the third question put to them in Rowe v. Young, 2 B. & B. 244 ; 2 Bligh. 391, 8. 0.; Outhwaite v. Luntley, 4 Camp. 1''9. Acquiescence in an accept- ance at a longer date' destroys the remedy against the prior parties according to the Scotch law. Glen, 2d ed. 115. So it did according to the old French law. Poth. 49. The Code de Commerce, Art. 124, avoids conditional acceptances, but allows acceptances for part of the sum and acceptances varying in the place of payment. Art, 123. A varying acceptance, though void as to other parties, would be binding between the contracting parties. Nouguier Lettres de Change, vol. 1, p. 234. (i) Sproat v. Matthews, 1 T. R. 182 | Bentinck v. Dorrien, 6 East, 200 ; 2 Smith, 336, s. 0.; Chit. 9th ed. 301. (1) Where a bill addressed to the drawees at their place of residence is accept- ed payable at a different town, this is a material variation, and a presentment at that other town will not charge the drawers. Niagara Bank v. Fairman Co., 31 Barbour, 403. When a bill is made payable at a particular place, a general accept- ance is in legal effect an acceptance to pay at the place. Alden v. Barbour, 3 Indi- ana, 414. A bill addressed generally to the drawee in a city, may be accepted payable at a particular bank in the same city. Meyers v. Standart, 11 Ohio (N. S.), 29 ; Niagara Bank v. Fairman Co., 31 Barbour, 403 ; Troy City Barik v. Lauman, 19 New York, 477. OF ACCEPTANCE. 317 *of law.(A) Acceptances, "to pay as remitted for,"(Z) r*i87"] " to pay when in cash for the cargo of the ship Thetis,"(»i) " to pay when goods consigned to him (the drawee) were sold,"(w) an answer, that a bill would not be accepted till a Navy bill was paid, have respectively been held to be conditional acceptances. So where, on the presentment of bills for acceptance, the drawee said he would have, accepted them if he had had certain funds which he had not been able to obtain from France, but that when he did obtain them he would pay the bill, this was held to amount to a conditional acceptance.(o) The words " accepted payable on giving up a bill of lading" constitute a conditional acceptance, but not a further condition to the acceptor's liability, that the bill of lading shall be given up on the day of maturity of the bill.( ^) When the acceptance is in writing, and absolute, it may be suspended on a condition by another contemporaneous writing. (g) But a mere oral condition (at least, if contemporaneous with the acceptance) is inadmissible jn evidence to qualify the absolute written engagement, even between the original parties. '* This would be," says Ellenborough, " incorporating with a written con- tract an incongruous parol condition, which is contrary to first prin- ciples. "(r)(l) And though the condition be written on a distirtct paper, it cannot be available against an indorsee ignorant of the existence of such a paper, (s) Though when the condition is' performed, a conditional accept- ance becomes absolute, yet, in pleading, it should be declared on [k) Sproat v. Matthews, 1 T. R. 182. ■ {I) Banbury v. Lissett, 2 Stra. 1211. (m) Jnlian v. Shobrooke, 2 Wils. 9. {n) Smith v. Abbott, 2 Stru. 1152. (0) Mendizabal v. Machad'o, 6 C. & P. 218 (25 E. C. L. R.) ; 3 M. & Scott, 841, s. c. [p) Smith V. Vertue, 30 L. J., C. P. 56 ; 9 0. B., N. S. 214 (99 E. 0. L. R.), s. 0. (j) Bowerbank v. Monterio, 4 Taunt. 844 ; but see 1 & 2 Geo. 4, c. 78, s. 2 ; 19 & 20 Vict. c. 97, s. 6 ; and see Spiller v. Westlake, 2 B. & Ad. 157 (22 B. C. L.' R.) ; Gibbon v. Scott, 2 Stark. 286 (3 E. 0. L. R.). {r) Hoare t. Graham, 3 Camp. 57; Adams v. Wordley, 1 M. & W. 374; 2 Gale, 29, s. 0. ; Besant v. Cross, 10 C. B. 896 (70 B. 0. L. R). («) Bowerbank v. Monteiro, 4 Taunt. 844. See Chapter vii. on Irregular Instru- ments. (1) An acceptance of a bill is an absolute contract to pay, and it cannot therefore be shown by parol that it was not absolute. Haverin v. Donnell, 7 Smedea and Marshall, 244. v 318 OF ACCEPTANCE. as conditional acceptance, with an averment that the condition has been fulfilled.(i!)(l) A partial or varying acceptance varies from the tenor of the bill, as where it engages to pay part of the sum. Drawee *accepted a foreign bill for 1211. 18s. id., as far as lOOL L 4 part thereof: he was sued on the acceptance, and it was held good, pro tanto, within the custom of merchants. (m) Or, to pay at a different time from that at which the bill is made payable by the drawer.(i;) A bill was accepted in this form, ; " Accepted on the condition of its being renewed till 28th Nov. 1844." This was held to be a Varying acceptance on which the holder might insist against the acceptor, and that the word renewed might be read to mean an extension of the time when the bill was to become payable. (a;) An acceptance which unnecessarily and inaccurately states the time of maturity is not a varying acceptance.(^) Before the 1 & 2 Geo. 4, c. 78, it was a point much disputed, (() Langston t. Corney, 4 Camp. 176; 1 Marsh. 176; 1 D. & R., N. P. C. 33; Ealli V. Sarrell, 1 D. & R., N. P. C. 33 ; see a form, Swann v. Cox, 1 Marsh. 176. (m) Wegersloffe Y. Keene, 1 Stra. 214. (jj) MoUoy, 283; Walker v. Atwood, 11 Mod. 190. In this case the acceptance was held good within the custom of merchants, but the case is no authority to show that the prior parties would not be dispharged if such an acceptance were taken without their consent. (j!) Russell V. Phillips, 19 L. J., Q. B. 297 ; 14 Q. B. 891 (68 E. C. L. R.), s. 0. {y) Fanshawe t. Peat, 26 L. J., Ex. 314 ; 2 H. & N. 1, s. c. (1) If a Jjill is accepted "to be paid when in funds," and the payee does not except to such acceptance, he cannot resort to the drawer till the acceptor refuses to pay, after he has funds. Andrews v. Baggs, Minor, 173 ; Campbell v. Pettengill, 7 Greenl. 126; see Knox v. Reeside, 1 Miles, 294; Gallery v. Prindle, 14 Barbour, 186. Where one accepts an order payable out of a certain note, when col- lected, but dies before the money is collected, and it is afterwards received by his personal representatives, they are liable in their representative char- acter upon the contract of their testator. Swanaey v. Breck, 10 Alabama, 533. The addition of the word " administrator" to the name of the acceptor of a bill of exchange, does not qualify his liability OT make his acceptance a conditional one. Tassey v. 'Church, 4 Watts & Sergeant, 346. When a factor accepts a planter's order payable " when in funds," it amounts to a promise to pay out of the first funds of the planter, which shall come into his hands, deducting the necessary advances for plantation expenses ; and he cannot defend himself against an action on the acceptance by shpwing, that he has never been in funds over and above the amount of a debt due him by the planter at the time of the aceptanoe. Hunter v. Ingraham, 1 Strobhart, 271. OF ACCEPTANCE. 319 whether, if a bill payable generally was accepted payable at a par- ticular place, such an acceptance was a qualified one. That statute, however, has now settled, that an acceptance, payable at a banker's or other particular place, is, as against the acceptor, a general acceptance, unless the acceptor express,'in his acceptance, that the bill is payable there only,(») and not otherwise or elsewhere. (a)(1) If the customer of a banker accept a bill, and make it payable at his banker's, that is of itself a suflScient authority to the bank- er to apply the customer's funds in paying the bill. (5) As to the manner in which a bill drawn or accepted payable at a particular place, should be presented for payment, and as to the form of pleading, see the next Chapter on Presentment for Pay- ment. Although, as we have seen, there cannot be two acceptances on the same bill, except for honor,(c) yet if such a *second r:)--] oq-i acceptance be oiithe bill, it may amount to a guarantee. ((^) If the drawer of a foreign bill, drawn in sets, accept both sets, and they are afterwards in the hands of two different hQlders, he may become liable to each.(e) The liability of the acceptor, though irrevocable when complete, (/) («) An acceptance omitting the word only, an4 stating the bill to be payable at a particular -place, and not elsewhere, is a special acceptance. Siggers t. Nichols, Q. B., H. T. 1839 ; 3 Jurist, 34, s. 0. (a) It will be observed, that this part of the statute applies to all bills, foreign as well as inland. See, as to the effect of the statute, cap. 14. (S) KSymer v. Laurie, 18 L. J., Q. B. 218. (c) A.S to which see Acceptance supra Pralest. (rf) Jackson t. Hudson, 2 Camp. 44T. (e) See Holdsworth v. Hunter, 10 B. & C. 451 (21 B. 0. L. R.) ; Perreira v. Jopp, ibid. (/) Thornton v. Dick, 4 Bsp. 270 ; Trimmer v. Oddie, Bayley, 6th ed. 204. (1) When the drawee of a bill accepts payable at a particular place, he is considered the principal debtor, and a suit, as in other cases of a precedent debt or duty, is a sufficient 'demand ; it will be a good defence, however, to show that he was at the place ready to pay according to the acceptance. Green v. Goings, 7 Barbour, Sup. Ot. 652. When the drawee of a, bill payable at sight, accepted it " if it be presented at a particular time," he will be liable on it, although not presented at that time. Clarke v. Gordon, 3 Richardson, 311. 320 OF ACCEPTANCE. does not attach by merely writing his name, but upon the subse- quent delivery of the bill, or upon communication to some person interested in" the bill, that it has been so accepted. "La raison est," says Pothier, "que le concours de volont^s, qui forme un contrat, est un concours de volont^s que les parties se sont recipro- quement di^clar^s ; sans cela, la volenti d'une partie ne peut acqudrir de droit eI I'autre partie, ni par consequent Stre irrevocable. Suivant ces principes pour que le contrat entre le propri^taire de la lettre et celui sur qui elle est tir^e soit parfait, il ne suffit pas que celui-ci ait eu pendant quelque temps la volont^ d'accepter la lettre, et qu'il ait ^crit au bas qu'il I'acceptait; tant qu'il n'a pas ddclar^ cette volonte^ le contrat n'est pas parfait; il peut changer de volont^ et rayer son acceptation." Hence it follows, that if the drawee has written his name on the bill, with the intention to accept, he is at liberty to cancel his. acceptance at any time before the bill is delivered, or at least before the fact of acceptance is communicated to the holder.(^) If a banker, with whom a bill is made payable by the acceptor, cancel the acceptance by mistake, without any want of due care, and return the bill so defaced, refusing to pay it, he does not thereby necessarily incur any legal liability. (A) But if the banker, in so doing, be guilty of want of due care, an action lies against him at the suit of the holder, for the special damage actually sus- tained by the cancellation of the bill. Where an acceptance has been cancelled by mistake, it is the usage in the city of London to return the bill with the words, "cancelled by mistake" written on r*1 901 ^*' '^^^ proper and safer mode of cancelling *is to draw the pen through the name, so as to leave it legible.(/) And upon the same principle it has been held that a cancellation (g) Cox V. Troy, 5 B. & Aid. 474 (7 E. C. L. E.) ; 1 D. & R. 38, s. o.; see Ben- tinck T. Dorrien, 6 Bast, 199 ; 2 Smith, 337, b. o. ; Marius, 20 ; and see Ralli v. DeDnistown, 6 Exch. 483 ; Chapmaa v. Cottrell, 34 L. J. 186. (A) Novelli V. Rossi, 2 B. & Ad. 757 (22 E. 0. L. R.) ; Warwick v. Rogers, 5 Man. & G. 340 (44 E. C. L. R.). (i) See the observations of Abbott, C. J., in Wilkinson v. Johnson, 3 B. & C. 428 (10 E. C. L. R.) ; and see Ingham v. Primrose, 28 L. J., 0. P. 294; 7 C. B., N. S. 82 (97 E. 0. L. R.). OF ACCEPTANCE. 321 of the acceptance by mistake made by other parties does not destroy the bill.(A) The acceptor is now considered, in all cases, as the party pri- marily liable on the bill. He is to be treated as the principal debtor to the holder, and the other parties as sureties liable on his default.(Z) The acceptor of a bill stands for most purposes in the same situation as the maker of a note, and therefore most of the following observations will apply to the latter also.(l) (i) Eaper V. Birkbeck, 15 East, 17; gumri:, as to the effect of the decision ia Davidson v. Cooper, U M. & W. 118, oa s-.i.iie cases of cancellation. (I) Pentum v. Pocock, 5 Taunt. 192 (IE. C. L. R.); 1 Marsh. 14, s. 0. (1) The presumption is that the acceptor of a bill of exchange has funds of the drawer in his hands to meet it ; and the possession of such accepted bill by the drawers is snfBcient to entitle them to recover the amount of the acceptor; and it makes no difference that the drawers took up the bill by giving a new note. Byrne v. Scbwing, 6 B. Monroe, 199. An acceptance is an admission that the acceptor has funds of the drawer. Jordan t. Tarkingdon, 4 Devereux, 358 ; Raborg v. Peyton, 2 Wheat. 385;, Kendall. v. Galvin, 3 Shepley, 131; Kemble v. Lull, 3 McLean, ,272; Byrd t. Bertrand, 2 English, 321. An acceptance of a bill is not a collateral en- gagement to pay another's debt, and is therefore not within the statute of frauds ; and when made without conditions, it is an absolute engagement to pay the money to. the holder. Raborg v. Peyton, 2 Wheaton, 385; Storer v. Logan, 9 Mass. 60. The acceptor of a bill is the principal debtor ; he cannot assume the attitude of a surety, though only an accommodation acceptor, and the equitable doctrine respect- ing sureties does not apply to him ; and if it did it would not ayail him in a suit at law upon a written acceptance, for which by the law merchant there is a sufficient consideration implied. Anderson t. Anderson, 4 Dana, 352. An accommodation acceptor of a bill of exchange is a surety as to the drawer, but a principal as to the holder, although the holder knew him to be an accommodation acceptor. In re Babcock, 3 Story, 393. An acceptance of a bill by parol is not void for want of consideration, when it appears that there was then a debt due from the acceptor to the drawer, on account of which the bill was drawn. Fisher v. Beckwith, 19 Ver- mont, 31 ; Walkerv. Sherman, 11 Metcalf, 170. The acceptor cannot defend against the payee, on the ground ttat the acceptance was without consideration (an accom- modation acceptance), and so known to the payee. Grant v. Ellicott, 7 Wendell, 227; Towsley v. Sumrall, 2 Peters, 183.; Warder v. Tucker, 7 Mass. 452. To entitle the holder of a bill to recover the amount of one who accepted without considera- tion, he must be an innocent bon& fide holder for value in the usual course of busi- ness without notice. Boggs.r. Lancaster Bank, 7 Watts k Sergeant, 331. But this case does liot show that the burden of proving this is in the first instance on the holder, or that proof of the fact, that the defendant was an accommodation acceptor, is enough to cast the burden on him. The. mere acceptance of a draft does not give the acceptor a right of action against the drawer. Suydam v. Coombs, 3 Green, 133. Where the drawer has paid the bill to the payees, after the acceptors have refused to pay it, he has the right to sue the acceptors, in the name of. the payee, for his own benefit. Davis v. McConncU, 3 McLean, 391. If the acceptoc af a bill ' 21 322 OF ACCEPTANCE. The acceptor's liability can only be disobarged by payment, or other satisfaction, by release, or by waiver. Payment, satisfaction, and release, we shall consider hereafter. It is a general rule of law, that a simple contract may, Je/ore hreaeh, be waived or discharged, without a deed and without con- sideration ; but after breach there can be no discharge, except by deed, or upoia sufiBcient consideration. (m) To this rule it has been repeatedly held that contracts on bills of exchange form an excep- tion, and that the liability of the acceptor, or other party remote or immediate, though complete, may be discharged by an express renunciation of his claim on the part of the holder,(w) without consideration. This exception seems at first sight to violate a fun- r*1Qn *^*™6'^''*1 ^^l^j ^^^ the reason may be that' the distinction *between a release under seal and a release not under (m) Com. Dig. Action on the Case in Assumpsit, G. Fitch t. Sutton, 5 East, 230 ; Dobson v. Espie, 26 L. J., Ex. 241 j 2 H. & N. 79, s 0. (n) The law seems now to be so settled in accordance with prior decisions and with the law of France and other countries, where the distinction between simple contracts and contracts under seal is unknown. " Le crfeancier pent renoncer a son droit d'exiger le payement de ce que lui doit son d^biteur ; c'est ce qu'on appelle faire remise." (Pardessus, Droit Commercial, vol. i. p. 272, 6th ed., Paris.) See the judgment of Parke, B., in Foster v. Dawber, 6 Exch. 851 ; see also Nouguier des Lettr>s de Change, toI. 1, p. 353. See also Dobson v. Espie, 26 L. J., Ex. 240 ; 2 H. & N. 79, a. 0. of exchange, after it has come to bis hands, put it again in circulation, he admits it to be a subsisting bill, and cannot be allowed to allege in an action against bim, that it was paid before that time. Hinton v. Bank of Columbus, 9 Porter, 463. On the acceptance of a bill, the presumption of law is that the drawee is in funds to pay it, and the drawer, if obliged to pay it, may maintain an action against the acceptor on this legal presumption. But when the evideni'e shows that the accept- ance was made without funds, the presumption-is on the other side, and there is an implied promise that the drawer put the drawee in funds. Thurman v. Von Brunt, 19 Barbour, 409. The drawer of a bill, not negotiable on its face, to whom it has been returned in default of payment by the acceptor, may maintain an action thereon against the acceptor in his own name without the indorsement or assign- ment of the payee. The acceptance is an admission of funds of the drawer in the hands of the acceptor. Coursin v. Leddie's Adm'r, 7 Casey, 506. The drawer, after presentment and refusal by acceptor, may maintain an action against him. Kinney v. Heald, 17 Arkansas, 397 ; Pilkington v. Woods, 10 Indiiana, 432. An accommodation acceptor who has paid a bill for which no funds were proTided by the drawer, may recover from him the amount on an implied contract of indemnity. De Barry v. Withers, 8 Wright, 356. Acceptance without payment gives the acceptor no right of action against the drawer. Planters' Bank v. Douglass, 2 ■ Head. 69.9. OF ACCEPTANCE. 323 seal is quite unknown in most foreign countries. An express and complete renunciation by the holder of his claim on any party to the bill is therefore according to the law merchant equivalent to a release under seal. And as it would be highly inconvenient to introduce nice distinctions and nice questions of international law, all the contracts on a foreign bill, though negotiated or made in England, and all the contracts on an inland bill, depending, as they do, on the same law merchant, may be so released. And such a relaxation of the general rule in the case of bills of exchange is not unreasonable on another ground. The money due at the maturity of a bill of exchange is in practice expected to be paid immediately, and, in many cases, with remedies over in favor of the debtor. Parties liable, who are expressly told that recourse ^ill not, in any event, be had to them, are almost sure, in consequence, to alter their conduct and position. Joint indorsees against acceptors : — It was proved that the plaintiffs knew the acceptance was for the accomodation of the drawer, and that they had said, at a meeting of the defendant's creditoi-s, " that they looked to the drawer, and should not come upon the acceptors." They had at this time goods of the drawer in their hands, which afterwards turned out of little value. Lord EUenborougb directed the jury to consider, " whether the language employed by the plain- tiffs amounted to an absolute unconditional renunciation by them, as holders of the bill, of all claims in respect of.it upon the defendants, as acceptors. In that case the acceptors were dis- charged from their liability : the holders had made their election, and could now only proceed against the drawer. On the other hand, if the words only imported that they looked to the drawer in the first instance, that it was not then necessary to come upon the acceptors, and that they should not resort to them if satisfac- tion could be obtained in another quarter, they did not waive their remedy by this conditional promise, and the acceptors still con- tinued liable until the bill should be actually paid."(o) Receiving interest from the drawer will not discharge the acceptor. Nothing short of an express discharge will do.(p) Where the discharge is (o) Whatley v. Tricker, 1 Camp, 35. {p) Dingwall v. Dunster, Doug. 235 ; and Black v. Peel, and Walpole v. Pulteney, there cited ; Anderson v. Cleveland, 13 East, 430, n. ; Farquhar v. Southey, M. & M. 14; 2 C. & P. 497 (12 E. C. L. R.), S. 0. ; Adams v. Gregg, 2 Stark. 531 (3 E. C. L. E.) ; Stevens v. Thaoker, Peake, 187. So it has been held, that a right to sue the drawer may be waived. Delatorre t. Barclay, 1 Stark. 7 (2 B. 0. L. R.) ; see 324 OF ACCEPTANCE. r*1 Q91 entirely in *writing, its interpretation and effect is for the "^ Court, where it is not, the question is for the jury. If the renunciation be not express, and for the whole amount, there must be a consideration.(g')(l) The cancellation of the acceptor's name by the holder is a waiver of the acceptance. Where a third persop. cancels, it is a question for the jury whether that cancellation were with the assent of the holder, (r) The liability of the acceptor,, as such, will also be extinguished, by taking from him a co-extensive security by specialty. (s) But if the new security recognize the bill or note as still existing, it is not extinguished. (<) Where one of three partners, after a dissolu- tion of partnership, undertook, by deed made between the partners, ■ Cartwright v. Williams, 2 Stark. 340 (3 B. 0. L. R.), ante; Adams T. Gregg, 2 Stark. 531 (3 E. 0. L. E ) ; see Story on Bills, s. 252 ; see also Steele v. Harmer, 15 L. J., Exch. 217 I 14 M. & W. 831, s. c, and 4 Exch. 1, in error. As to pleading a waiver, see Steele v. Benham, 3 D. & L. 506. (j) Parker v. Leigh, 2 Stark. 228 (3 E. 0. L. R.) ; Parquhar v. Southey, 2 C. & P. 497 i Owen v. Pizey, 11 W. R., C. P. 21. (r) Sweeting t. Halse, 9 B. & G. 365 (17 E. C. L. R.) ; 4 M. & R. 287, s. 0. (a) Ansell v. Baker, 15 Q. B. 20 (69 B. C. L. R.). («) Twopenny v. Young, 3 B. & G. 208 (10 E. C. L. R.) ; 5 D. & R. 259, a. c. (1) Judge Story has not laid down the law so broadly as it is assumed in the text. He says : " Where the renunciation is clear, and the intention to discharge unques- tionablej there, if there be a sufficient consideration, or an act done on the part of the acceptor, which might not otherwise have been done, which affects hia, interest, the acceptor will be discharged." Story on Bills, s. 266. There can be no hesita- tion in assenting to this statement of the law. But there is nothing peculiar in this doctrine to bills of exchange. It is the application only of principles well settled in all other classes of contract. It is to be observed also, that bills or notes are not within the rule that simple contracts may be discharged by parol before breach ; it ^ would be more accurately expressed, to say that executory contracts may be dis- charged or varied by parol before breach, and then I am not aware of any principle or cases, which would confine it to simple contracts. If A. agrees to build a house for B., or to sell^him certain materials, whether by articles under seal or not, A. and' B. may before breach vary such agreement by parol. But if the consideration on either side is executed, or just so far as it is executed, it is no longer an executory but an executed contract, and an accord without satisfaction is no bar. A bond, a bill, a note, the price to be paid for making a coat, building a house, or selling a barrel of flour, if the service has been performed, or the merchandize delivered, though a credit is given, are debita in presmti, solvenda in future, and cannot be. released, unless by an instrument under seal, or an agreement founded upon suffi- cient consideration. OF ACCEPTANCE. 325 to pay a particular partnership debt on two bills of exchange, and that was communicated to the holder, who consented to take the separate notes of the one partner for the amount, strictly pre- serving his right against all three, and retained possession of the original bills, it was held that, the separate notes having proved unproductive, he might still resort to his remedy against the other partners, and that the taking, under these circumstances, the sepa- rate notes, and even afterwards renewing them several times suc- cessively, did not amount to satisfaction of the joint debt.(M) But, in general, the taking a separate bill of one of two joint acceptors of a former bill is a relinquishment of all claim on the former security, (a;) A plea of waiver must state that the party waiving was the holder of the bill at the time of the waiver.(2/) By acceptance, the drawee admits the signature and capacity of the drawer, and cannot after thus giving the bill *cur- r^igg-i rency, be admitted to prove that the drawee's signature was forged. (g)(1) He moreover admits, and so does the maker of a promissory note, the then capacity of the payee, to whose order the bill or note is made payable, to indorse. Hence the acceptor is estopped from Saying that the payee being a bankrupt could not indorse, (a) and even from saying that a second bankruptcy before (m) Bedford v. Deakin, 2 B. & Aid.- 210; 2 Statk. 178 (3 B. 0. L. R.), s. o. (x) Evans v. Drummond, 4 Bsp. 89; Eeed v. White, 5 Esp. 122; Thompson v. Percival, 6 B. & Ad. 925 (27 B. 0. L. R.) ; 3 N. & M. 667, s. 0. (y) Steele v. Harmer, 15 L. J., Bxeh. 217; 14 M. &W. 136, s. o. As to this point, affiriped in error, 4 Exch., 1. (s) Price V. Neal, 3 Burr. 1354; 1 W. Bl. 390, s. o. ; Porthouse t. Parker, 1 Camp. 82 ; Prince v. Brunatte, 1 Bing. N. C. 435 (27 E. C. L. R.) ; 1 Scott, 342 ; 3 Dowl. 382, s. a. ; Wilkinson v. Lutwidge, 1 Stra. 648 ; Jenys v. Fawler, 2 Stra. 946; and see Bass v. Clive, 4 M. & Sel. 13 ; 4 Camp. 78, s. o. (a) Drayton v. Dale, 2 B. & 0. 293 (9 E. 0. L. R.) ; 3 D. & Ry. 534, s 0. ; Braith- waite V. Gardiner, 8 Q. B. 473 (55 E. 0. L. R.). (1) An acceptor is bound to know the drawer's handwriting, and cannot resist payment to a bond fide holder, though the bill be a forgery. Bank of United States T. Bank of Georgia, 10 Wheaton, 333 ; Levy v. Bank of the United States, I Binney, 27; 8. 0. 4 Dallas, 234. The acceptance of a bill is an admission of its execution by the drawee. Peoria & Oquawha Railroad Co. v. Neill, 16 Illinois, 269. Accept- ance of a bill admits the signature of the drawer, but not of the payee, whether it be payable to the drawer's own order or to that of another person. Williams v . Drexel, 14 Maryland, 566. 326 OF ACCEPTANCE. the acceptance precluded him from indorsing, though the efifect of such second bankruptcy be(6) to vest^ ipso facto, all the bankrupt's property in his assignees.(e) . Neither can the acceptor be allowed to defeat the indorsement by setting up the infancy o^the payee.((?) Nor can the acceptor plead that the drawer to whose order the bill was made payable^ being a corporation,, had no authority to •indorse ;[e) nor that the drawer was a married woman, although, as the husband may sue or indorse, the consequence may be that the acceptor may possibly be compelled to pay the bill twice.(/) Nor that the drawing and first indorsing were in the name of a deceased •person. (^) But the acceptance of a bill drawn and indorsed in the name of a really existing person is no admission of the hand- writing of the indorser,{h) unless at the time of the acceptance the drawee knew of the forgery, and intended that the bill should be put into circulation by a forged indorsement.(^') And the accept- ance of a bill purporting to be already indorsed by the payee, not being the drawer, is no admission of the genuineness of the indorse- ment,(y) and it is conceived that the law is the same though the bill be payable to the drawer's own order.(^) .So where the drawing is by procuration, the authority of the agent to draw is admitted, but not his authority to *indorse.(^) But where the bill is L J-' drawn in a fictitious: name, the acceptor undertakes to pay to an indorsement by the same hand.(TO) (6) 6 Geo. 4, c. 16, s. 127, (c) Pitt V. Chappelow, 8 M. & W. 616. (d) Taylor v. Crocker, 4 Bsp. 187 ; Jones v. Darch, 4 Price, 300. (e) Halifax v. Lyle, 19 U J., Exch. 197 j 3 Bxch. 446, s. 0. (/) Smith V. Marsack, 18 L. J., C. P. 68 ; 6 0. B. 486 (60 E. C. L. R.) . .{g) Ashpitle v. Bryan, 32 L. J., Q. B. 91 ; 3 Best & S. 474 (113 B. C. L. R.) ; affirmed in error, 33 L. J., Q. B. 328. (A) Smith V. Chester, 1 T. R. 655 ; Carvick v. Vickery, Dong. 2d ed. 653, n. 134. (i) Beeman v. Duck, 11 M. & W. 251. {j) Tucker v. Robarts, 18 L. J., Q. B. 169 ; 22 L. J., Q. B. 270; in error, 16 Q. B. 560 (71 E. C. L. R.), s. c. (k) Story on Bills, p. 489 ; but see a dictum of Patteson, J., in Tucker v. Bob- arts, supra ; Beeman t. Duck, supra. {I) Robinson v. Yarrow, 7 Taunt. 455 (2 B. C. L. R.) ; 1 Moore, 150, s. c. (m) Cooper v. Meyer, 10 B. & 0. 468 (21 E. 0. L. R.) ; 5 M. & R. 387, a. o. ; Beeman v. Duck, 11 M. & W. 251 ; and see Taylor v. Croker, 4 Bsp. 187 ; Bass v. Clive, 4 M. & S. 13 ; 4 Camp. 78, s. c. See Phillips v. Inthun, C P., E. T. 1866. It seems that a bill drawn and indorsed in a_ fictitious or forged name, to the know- ledge of the drawee, should be declared on as payable to bearer. See Phillips v. Inthun, ante, and Beeman v. Duck, 11 M. & W. 251. OF PRESENTMENT FOR PAYMENT, 327 If the drawee has once admitted that the acceptance is in his own handwriting, and thereby given currency to the bill, he cannot afterwards exonerate himself by showing that it was forged.(M)(l)^ *CHAPTBR XIV. OP PEESENTMENT FOR PAYMENT. [*195] HOW MADE 195 ITS CASE OP BANKRUPTCY OB INSOL- VENCY 196 UNNECESSABY TO CHARGE A OUAR- ANTOR 197 ItheKE DRAWEE ABS00ND3 197 IN CASE OF drawee's DEATH 197 OF holder's death . . . . 197 WHEN TO BE MADE . . . . 197 TIME, HOW OOMPnTED 197 MONTHS 197 DAYS 198 BILLS AND NOTES AT SIOHT 198 USANCE OLD AND NEW STYLE DAYS OF QRAOE .... WHAT IN DIPFBiBENT COUNTEIES . HOW BECKONED .... SUNDAYS AND HOLIDAYS, HOW BECK- ONED PBB8ENTMENT BEFOBE EXPIRATION OF DAYS OF QBACE . . . . ON WHAT INSTEUMENTS DAYS OF GRACE ALLOWED WHEN PBESENTMENT OF BILL PAYABLE , AT SIGHT IS TO BE MADE 198 199 199 199 200 200 200 200 201 (n) Leach r. Bachaaan, 4 Esp. 226. (1) Where the maker of a note dr.iws it payable to a real person and forges his indorsement, and puts the note into circulation, in an action hj a bond fide bolder against the maker, proof of the indorsement is unnecessary ; the maker will be estopped from saying that it is not genuine. Meacher v. Fort, 3 Hill (South Caro- lina), 227. A party indorsing a promissory note impliedly affirms its genainenesa, as well as that of all previous indorsements ; and though his indorsee in declaring against him, may, in usual form, allege the making of the note and its indorsement to the defendant, yet he cannot be. required to prove it. Woodward v. Harbin, 1 Alabama, 104. If the maker of a note makes its payable to a fictitious person, and puts it in circulation with the fictitious name written on it, or if he makes it pay- able to a real person and forges his indorsement or procures it to be done, and then puts it in circulation, he is estopped to say that it is not genuine. Ff it v. Meacher, Riley, 248, A note payable to the order of a real person, and indorsed in a hand- writing resembling and intended to pass for his, cannot be considered as payable to a fictitious payee, and so negotiable without being indorsed. Dana v. Underwood, 19 Pick. 99. A paper purporting to be a bill of exchange, having a blank for the payee's name, may be filled up at any time by a bond fide holder ; but until it is so filled up, a suit will not lie on it against the acceptor. Greenhow v Boyle, 7 Black- ford, 56. 328 OF PRESENTMENT FOR PAYMENT. OF A BILL PAYABLE AFTER SIGHT . 20] OF A BILL OF EXCHASiQB PAYABLE ON DEMAND . . f . . 201 GENERAL RULE 202 DIFFERENT SORTS OF INSTRUMENTS PAYABLE ON DEMAND 202 OF A COMMON BILL OF KX0HAN6E PAY- ABLE ON DEMAND .... 202 OF A CHECK 203 OF a'OOMMON PBOMISSOEY NOTE PAY- ABLE ON DEMAND .... 2Q3 OF A BANK NOTE .... 203 OF OTHER BANEEBS' PAPER . . 204 WHEN NO TIME OF PAYMENT IS SPECI- FIED 204 AT WHAT HODB .... 204 WHERE, WHEN A BILL IS MADE PAY- ABLE AT A PAUTICDLAR PLACE . 205 IN AN ACTION AGAINST INDOBSER . 206 I PLEADING 207 WHEN A NOTE IS MADE SO PAYABLE . 208 SDPPLEMENTAKY MEMORANDUM . . 208 CONSEQUENCE OF NOT DULY PRESENTING 209 PRESENTMENT NOT NECESSARY TO CHARGE ACCEPTOR . . . 209 WHEN NEGLECT TO PRESENT EXCUSED . 209 OF BILL SEIZED UNDER EXTENT . . 209 BY CIRCULATING .... 209 BY THE ABSCONDING OF THE DRAWEE . 210 BY ABSENCE OF EFFECTS IN THE drawee's HANDS 1. . . . 210 NOT BY DECLARATION OF ACCEPTOR THAT HE WILL NOT PAY . . 210 BY RETURNING NOTES . . . 210 ADVANTAGE FROM NEGLECT HOW WAIVED 210 PLEADING 211 EVIDENCE OF PBESENTMBNT . .211 A PERSONAL demand on the drawee or acceptor is not neces- sary, (a) It is sufficient if the bill be exhibited and payment be demanded at his usual residence or place of *business, of L -I his wife, or other agent ; for it is the duty of an acceptor, if he is not himself present, to leave provision for the payment.(S)(l) (a) And it has been held in America, that if made by a notary on the drawee in the Street, aw^y from his place of business, it is insufficient. Byles on Bills, 4th American edition. (i) Matthews v. Haydon, 2 Bsp. 509 ; Brown v. M'Dermot, 5 Esp. 265. If the bill be payable at a particular place, see post. ( 1 ) A demand by a notary in Hhe street, upon the acceptor of a bill payable gene- rally, is not a sufficient demand. It should be made at his place of business. King V. Holmes, 11 Penna. State. Rep. 465. The general rule is, that where a bill is ac- cepted by partners, the presentment for payment should be at their place of busi- ness, or at the dwelling-house of either of them. And if a draft is addressed to the acceptors at a particular place, that will be presumed to be their place of business. The Otsego County Bank v. Weaver, 18 Barbour, S. 0. Rep. 290. Refusal by a clerk at the counting house of drawee, sufficient without evidence of his authority. Stainback .-. The Bank of Virginia, 11 Grattan, 260. When demand is made the bill itself must be exhibited. Freeman v. Boynton, 7 Mass. 483 ; Masson v. Lake, 4 Howard, U. S. Rep. 262,' Draper v. Clemens, 4 Missouri, 52. See Posey v. Decatur Bank, 12 Alabama, 802 ; Bank of Vergennes v. Cameron, 7 Barbour, Sup. Ct. 143 ; Whitwell V. Johnson, 17 Mass. 499 ; Smith v. Gibbs, 2 Smedes & Marshall, 479 ; Nailor v. Bowie, 3 Maryland, 251. A demand of payment of a lost note or present- ment of a copy is sufficient, and satisfies the usual averment of due presentment. Hinsdale v. Miles, 5 Conn. 331. It is sufficient to constitute a demand and refusal OF PKESBKTMENT FOR PAYMENT. 329 And it is sufficient if payment be demanded of an agent who has been authorized to pay, or has usually paid bills for the drawee. Where a promissory note is payable at either of two places, presentment at either of them will suffice. Thus, where a country bank note was made payable both at Tunbridge and in London, presentment in London was held sufficient, though it was proved, that, had it been presented at Tunbridge, the nearest place, it would have been paid.(c) But it is conceived that presentment of a check to the London bankers of the drawee, though described on the check as agents, is insufficient, for the obligation to pay a check must in general depend on the state of the drawer's account, which the London agents may not know.(c?) The bill or note ought to be exhibited,(e) for it should be then and there delivered up. The party presenting should also be ready and authorized to receive the money, and has no right (at least, unless usage requires it) to impose on the drawee any trouble or risk in remitting the money elsewhere. (/) The bankruptcy or insolvency of the drawee is no excuse for a neglect to present for payment ; for many means may remain of (c) Beeching t. Gower, Holt, N. P. C. 313. (d) Bailey v. Bodenham, 33 L. J., C. P. 252. (e) See the American aathorities, Byles on Bills, 4th American edition. (/) See Bailey v. Bodenham, 33 L. J., 0. P. 255. to pay a note that the maker, on the day it becomes due, calls on the holder at his store where the note is, and informs him that he cannot and shall not pay it, and desires him to give notice to the indjrser, though the note is not produced. Gilbert V. Dennis, 3 Mete. 495. A notice sent the maker of a note through the post office, where his residence is known, that his note is overdue and unpaid, is not a sufficient demaud to chai-ge the indorser. Stuckert v. Anderson, 3 Wharton, 116 ; Barnes v. Vanghan, 6 Khode Island, 259 ; Hartford Bank v. Green, 11 Iowa, 476. On the day a bill was due a notary went with it several times to the office of the acceptor, but found the doors closed and no person there to answer his 'demand. This was held a good demand although one of the firm resided in the place. Wise- man T. Chiapella, 23 Howard (S. 0.), 368 ; Bank of Louisiana v. Satterfield, 14 Louisiana Annual, 80. Where inquiry was made both at the maker's last place of business and his last place of residence from which he had recently removed and he could not be found, it is sufficient, and the complaint in a suit against the in- dorser properly avers presentment. Paton v. Lent, 4 Duer, 231. As to what dili- gence in seeking the maker or acceptor will excuse demand, see Gage v. Dubuque Railroad Co. 11 Iowa, 310; Grafton Bank v. Cox, 13 Gray, 503; Baumgardner f. Reeves, 11 Casey, 250; Laughlin v. Marshall, 19 Illinois, 390 ; Sasser v. Whitely, 10 Maryland, 98 ; Plakto v. Patchin, 26 Missouri, 389 ; Packard v. Lyon, 5 Duer, 82 ; Benedict v. Caflfe, Ibid. 226. 330 OF PEBSEHTMBNT FOR PAYMENT. obtaining payment, by the assistance of friends or otherwise.(^) It has been held in the King's Bendhi, that the shutting up of a bank, when any demand there made would have been inaudible, is substantially a refusal by the bankers to pay their notes, to all the world.(Zt) But it was decided in the same case, on error in the Exchequer Chamber, that an allegation in the declaration, that the makers became insolvent, ceased, and wholly declined and refused, then and thenceforth to pay, at the place specified, any of their notes, ii insufficient, not being equivalent to an allegation of present- ment.(i) But it is *conceived, notwithstanding the. observa- '- J tions of the Court in l^he last case, that it cannot be ne- cessary for the holders of the notes of a bank which has notoriously stopped payment, and is shut up, to, go through the empty form of carrying their notes up to the bank doors, and then carrying them home again. (i) A presentment for payment is now decided not to be necessary in order to charge a man who guarantees the due payment of a bill or note.(Z) And it had before been held that where a party was a guarantee for the vendee of goods, who had accepted a bill for the amount, and then became bankrupt, the notorious insolvency of the vendee was sufficient so far to excuse the drawer as to enable him to charge the guarantee, unless it could have been shown that the bill would have been paid if duly presented, though it would have been otherwise in an action on the bill.(»M) (ff) RuBSel T. Langstafife, Doug. 496 ; Warrington v. Fnrbor, 8 East, 245 ; Nichol- son T. Gouthit, 2 H. Bl. 609 ; Ex parte Johnstone, 1 Mont. & Ayr. 622 ; 3 Deac. & Chitty, 433, s. c. ; Esdaile v. Sowerby, 1 1 Bast, 114 ; Lafitte v. Slatter,.6 Bing. 623 (19 E. C. L. R.) ; 4 M. & P. 457, s. c. ; Camidge v. AUenby, 6 B. & C. S13 (13 E. C. L. R.) ; 9 D. & R. 391. (A) Howe T. Bowes, 16 East, 112. (i) 5 Taunt. 30 (1 E. C. L. R.), s. c, in error (ft) Since the above observations were written, I observe that the point has been so ruled at Nisi Feins and afterwards at Chambers. See Henderson v. Appleton, Chitty, Stji ed. 356, and Rogers v. Langford, 1 C. & M. 637, where Lord Lyndhurst says, >'lt is possible, if you had returned the notes in due time, that might have done instead of presentment." See also Turner v. Stones, 1 Dow. & L. 122 ; Sands V. Clarke, 19 L. J., C. P. 84; Main's case, 5 Rep. 21 a; Robson v. Oliver, 10 Q. B. 704 (59 E. C. L. R.). (I) Hitchcock V. Humfrey, 5 M. & G. 559 (44 E. C. L. R.) ; Walton v. Mascall, 13 M. & W. 453. (m) Warrington v. Purbor, 8 East, 242 ; 6 Bsp. 89, s. o. OF PRESENTMENT FOR PAYMENT. 331 If the drawee has shut up his house, the holder must inquire after him, and attempt to find him Out.(l) If the drawee be dead, presentment must be made to his perso- nal representatives; and, if he have none, then at his house.(w)(2) (m) Chitty, 9th ed. 357. (1) Want of demand is excused when the drawee cannot be found. Stewart r. Bden, 2 Caines, 121 ; Galpinv. Hard, 3 McCord, 394; PorterT. Judson, TGray, 175 ; McKee v. Boswell, 33 Missouri, 567. Where the dwelling-house or place of business of the drawee of the bill is shut up, inquiry should be made in the neighborhood in order to excuse presentment. Ellis t. Commercial Bank, 7 Hojpard, Miss. 294. Where the maker of a promissory note has absconded from his usual place of resi- dence before the time of payment, it is not necessary to prove an inquiry for him there, and an effort to obtain payment, in order to charge the iiidorser. Lehman r. Jones, 1 Watts & Serg. 126. Contra. Wyman v. Adams, 12 Gushing, 210. If the drawee of a bill remove from his usual place of residence to another in the same state or kingdom, the holder is bound, in order to charge the indorser, to use reason- able diligence in finding the latter, and if he succeed, present the bill for payment. Reid V. Morrison, 2 Watts & Serg. 401 ; see Gilmore v. Spies, 1 Barb. 158. Where the maker of a promissory note abandons his business and residence, and removes into another state, before the maturity of the note, the holder, if it be not proved that he received the note after the maker's removal, is not bound, in order to charge the indorser, to demand payment of the maker in the state to which he has removed ; but he, is bound to demand payment at the maker's last residence or place of business within the state where he made the note, if he can find it by the use of due diligence. Wheeler v. Field, 6 Mete. 290. A change of residence by the maker to a different state, dispenses with demand at his last place of residence in the state from which he removed. Foster v. Julien, 24 New York, 28. Where at the maturity of a draft, the firm on which it was drawn in the city of New Orleans had no place of business, and could not be found there, and had then ceased to exist as a firm, it was held that a protest was -^ninecessary to bind the drawer. Nelson v. Middleton, 14 Louisiana Annual, 484. - The known bankruptcy or insol- vency of the acceptor or maker, will not excuse demand and notice. Benedict v. Gaffe, 5 Duer, 226. (2) The death of the maker of a note, and the insolvency of his estate, do not dispense with the necessity of demand and notice in order to charge an indorser. Johnson v. North, 1 Bailey, 482 ; Juniata Bank v. Hale, 16 Serg. & Bawle, 159. But, where the maker of a negotiable note is dead at the time of indorsement, no demand is necessary to charge the indorser. Davis v. Francisco, 11 Missouri, 572. To make a demand oii the personal representative of the acceptor good, proof must be maj? of the death of the party and of the appointment of the administra- or or execu- tor. Weems v. Farmers' Bank, 15 Maryland, 231. Demand may be made by any one authorized by the holder and possession of the note is sufScient evidence of author- ity. Cole V. Jessup, 10 New York, 96. A notary cannot present a biU or note by deputy unless authorized by statute or usage of the place where presentment is made. Cribbs v. Adams, 13 Gray, 597 ; Locke v. Huling, 24 "Bexas, 311. Demand on foreign bill must be by notary. Meltonberger y. Spaulding, 33 Missouri, 421. 332 OP PRESENTMENT POR PAYMENT. If the holder die, presentment should be made by his personal representatives. la treating of the time when presentment is to be made, it will be necessary to consider, first, how, on the various sorts of bills, time is computed, and then on what bills, and to what extent, days of grace are, allowed. In Acts of Parliament passed before the end of the year 1850,(o) in deeds, in other contracts and written instruments, and in legal proceedings, the word month is taken to mean a lunar, and not a calendar, month, unless there be *something in the con- r*1981 • • / . L -I text to indicate the latter sense ;(pj but in matters eccle- siastical, in Acts of Parliament passed after the year 1850,(j) and, by the custom of trad% in bills and notes, a month is deemed to be a calendar or solar month, (r) The inequality in the length of the respective months may some- times occasion a diflSculty, but it is said to be a rule not to extend the time at which the bill falls due beyond the month in which it would have fallen due, had that month been of the length of thirty- one days. Thus, if a bill at one month be drawn on the 31st of January, it will be due on the 28th of February, and, with the days of grace, payable on the 8rd of March. (s)(l) When a bill is drawn at a certain number of days after date or (0) 13 & 14 Vict. c. 21,s. 4. Y , (p) Lang T. Gale, 1 M. & Sel. Ill ; Barksdale t. Morgan, 4 Mod. 185 ; Jocelj-n V. Hawkins, 1 Stra. 446, which, however, seems overruled by Titus v. Lady Preston, 1 Stra. 652. In a contract for purchase of lands, months are said to be primS, facie calendar months. Hipwell v. Knight, 1 Younge & 0. 401 ; and see Webb y. Pairmaner, 3 Mees. & W. 474 ; see 1 Sug. Vend. & Pur. 402. The meaning of the ■word " month" in a charter-party baa been left as a question for the jury. Jolly v. Young, 1 Esp. 186 ; Reg. v. Ohawtou, 1 Q. B. 247 (41 E. C. L. R.) ; see the authorities fully collected in Simpson v. Margitson, 11 Q. B. 23 (63 E. C. L. R.) ; and 2 Exch. 116. (g) 13 & 14 Vict. c. 21, s. 4. (»•) Cookell V. Gray, 3 B. & B. 186. w • (s) Marins, 75 ; Kyd, 4. (1) February commercially speaking never has more than twenty-eight days. Kobler V. Montgomery, 17 Indiana, 220. A note dated Feb. 25, 1848 (leap year) was made payable -ninety days after date, held that it was not due till May 29. Craft T. State Bank, 7 Indiana, 213. OF PRESENTMENT FOR PAYMENT. 333 after sight, those days are reckoned exclusively of the day on which the bill is drawn or accepted, and inclusively of the day on which it falls due.(() We have already observed, thj,t on a hill the words " after sight" are equivalent to " after acceptance ;" for sight must appear in a legal way. If a note be made payable at sight, it must be pre- sented before action brought against the maker.(M) Usance is the period which, in early times, it was usual to appoint between different countries for the payment of bills. — When usance is a month, half usance is always fifteen days,(a;) notwithstanding the unequal length of the months. An usance between London, Aleppo, Altona, and Amsterdam, Antwerp, Brabant, Bruges, Flanders, Geneva, Germany, Hamburg, Holland, and the Nether- lands, Lisle, Middleburg, Paris, or Amsterdam, Rotterdam, and Rouen, *is one calendar month ; between London and the . r*1991 Spanish or Portuguese towns, two calendar months ; be- '- -• tween London and Genoa, Venice, or places in Italy, it is three calendar months, (y) It is said that all the countries with which the English are in the habit of negotiating bills, compute their time by the new style, with the single exception of Russia.(g) In the case of bills drawn in a place using one style, and payable in a place using another, if drawn payable at a certain period after date, they fall due as they would have done in the country in which they were drawn. Thus, a bill drawn Feb. 1, in London, on St. Petersburg, at one month, would be payable without the days of grace, on March 1, in our calendar ; and, as it was drawn on Jan. 21, old style, it would fall due on Feb. 21, in the Russian calendar. But, if the bill were drawn payable at a day certain, or at a certain period after sight, the time must then be reckoned according to the style of the place on which it is drawn.(a) («) So if a bill be drawn payable so many days after a certain event. Bayley on Bills, 6th ed. 245 ; Coleman v. Sayer, 1 Barnard, 303. • (m) Dixon V. Nuttall, 1 C, M. & E. SOT ; 6 0. & P. 320 (25 E. C. L, R.) ; s. o. (x) Marius, 93. (y) Chitty, 10th ed. 254; Bayley, 201. («) Bayley, 201. (o) Beawes, 444 ; Bayley, 202. 334 OP PRBSBNTMBNT FOE PAYMENT. Days of grace are so called, because they were formerly allowed the drawee as a favor : but the laws of commercial countries have^ long since recognized them as a right. The number of these days varies in different places. Mr. Kyd, in his Treatise on Bills of ExchangCj gives the following table, which, however, has been altered in many places since his day, by the substitution of the. French code, and other circumstances: — " Great Britain, Ireland, Bergamo, and Vienna, three days. " rranl^fort,(6) out of the fair-time, four days. , "Leipsic, Naumburg, and Augsburg, five days. "Venice,(e) Amsterdam, (c?) Rotterdam, (c?) Middleburg, Ant- werp,(c?) Cologne, Breslau, Nuremberg, and Portugal,(e) six days. " Dantzic, Konigsberg, and Franee,(c?) ten days. " Hamburg and Stockholm, twelve days. r*2001 *''Naples,(e) eight; Spain, fourteen ;(/) Rome, fifteen; and, Genoa, thirty days. " Leghorn, (^) Milan, and some other places in Italy, no fixed number. " Sundays and holidays are included in the respite days, at Lon-, don, Naples,(e) Amsterdam,(e) Rotterdam,(e) Antwerp,(e) Middle- burg, Dantzic, Koningsberg, and France ;(e) but not at Venice, Cologne, Breslau, ^.nd Nuremberg, At Hamburg, the day on which the bill falls due makes one of the days of grace ; but it is not so elsewhere." Three days of , grace are allowed in North America, at Berlin, and in Scotland.(A) At Rio de Janeiro, Bahia, and other parts of Brazil, fifteen ' At St. Petersburg, ten days on bills after date, three days on bills at sight, ten days on bills received and presented after they are due. (J) i. c. on the Maine. (c) Not including Sundays and holidays. (d) Abolished by the French Code. " Tous d^lais de grfi,ce, de faveur, d'usage, ou d'habitude locale pour le paiement de lettres de change, sont abrog^s." Code de Commerce, liv. i. tit. 8, 135. (e) Now, it is believed, in Lisbon and Oporto, fifteen days on domestic, and six on foreign bills. (e) See note {d). .(/) But eight days ■of grace only are allowed on inland bills. At Cadiz only six days are allowed. {g) K'ow none. (A) See Ferguson t. Douglas, 6 Bro. P. C. 276. OF PKBSENTMBNT^ FOR PAYMBNT. 335 \ At Trieste and Vienna, three days on bills after date.(i) \, The three days'' grace allowed in this country are reckoned ex- clusive of the day on which the bill falls due, and inclusive of the last day of grace. Where there are no days of grace, and the bill falls due on a Sunday, Christmas-day, Good Friday, public fast or thanksgiving day, or where the last of the days of grace happens on such a day, the bill becomes payable on the day preceding ; and if not then paid, must be treated as dishonored.(A)(l) A presentment for payment before the expiration of the days of grace is premature, and will not enable the holder to charge the antecedent parties,(Z)(2) ; Days of grace are allowed on promissory notes as well as on bills.(w) Theyareallowed, whether the bill or note be *made |-*of)-]-i payable on a certain event, or at a certain day,(M) or at a certain number of years, months, weeks, or days, after date or after sight, or at usance, or by instalments. (o) But they are not allowed on bills or notes payable on demand.(p) Whether days of («) See Freese's Gam. Gomp. part 2. (A) Tassell v. Lewis, 1 Ld. Eaym. V43; 39 & 40 Geo. 3, u. 42; 7 & 8 Geo. 4, c. 15. " Si I'^ciieaace d'une lettre de change est k un jour f<§rie 16gal, elle est pay- able la yeille." Code de Commerce, liv. 1, tit. 8, 134. (Q Wiffen v. Roberts, 1 Bsp. 261. (m) Brown v. Harraden, 4 T. R. 148. (n) Ibid., and so held in America. Griffin t. Goff, 12 Johns. Rep. 423. (o). Oridge v. Sherborne, 11 M. & W. 374; Oarloa v. Kenealy, 12 M. & W. 139. If the whole be payable on default of payment of any one instalment the note is still a good promissory note. Ibid., and iee Miller v. Biddle, Exch., M. T. 1865. Are three more days of grace to be allowed ? (_p) Bayley, 241 ; Chitty, 10th ed. 261. (1) Wbaley v. Houston, 12 Louisiana Annual, 505. (2J In order to charge the drawer or indorser, demand must be niade of the drawee on the last day of grace. Piatt v. Bads, 1 Blackford, 82 ; Bldridge v. Rogers, Minor, 39^; Bussard v. Lerering, 6 Wheat. 102; Mitchell v. De Grand, 1 Mason, 178; Ontario Bank v* Petrie, 3 Wendell, 456. A demand may be made upon the acceptor on the third day of grace, and, upon refusal to pay, notice may be giyen to the indorser of the non-payment on the same day, and after such notice on the same day, suit may be immediately commenced against the indorser. Manchester Bank r. Fellows, 8 Foster, 302. A bill at sight has days of grace. Walsh v. DartJ 12 Wisconsin, 635. OF PRESENTMENT FOR PAYMENT. grace are allowed on bills payable at sight, seems yet undecided. (g') The weight of authority has been considered to, incline in favor of such an allowanGe.(r) If days of grace are to be allowed on bills drawn payable at sight, the time when they should be presented has already been considered, in the Chapter on Fresentmerit for Acceptance. If not, then they stand on the same footing as bills payable indefi- nitely, and bills payable on demand. We have already seen that the time which bills payable after sight have to run is computed from the date of the acceptance ;(«) a note payable at a certain period after sight is payable at that period after presentment for sight.(t) So, if some time after a re- fusal to accept, a bill payable after sight be accepted supra protest, the time is calculated, not from the date of the exhibition of the bill to the drawee, but from the date of the acceptance supra pro- test.iu) Bills and notes payable on demand, and checks, must be pre- sented within a reasonable time. What is a reasonable time seems to be a question of law.(3;)(l) And such a decision is conformable (j) Beawes, 256 ; Kyd, 10; Bayley, 198 : Dehers v. Harriott, 1 Show. 163 ; Cole- man v. Sayer,'Barn. R. 303; 2 Stra. 829, s. 0. ; Ja,jisoQ v. Thomas, Bayley, 6th ed. 241 ; 3 Doug. 421 (26 E. C. L. E.), s. 0. ; Dixon v. Nuttall, 1 C, M. & R. SOT ; 6 0. & P. 320 (25 E. C. L. R.), s. 0. (t) Selw. N. P., Tth ed. 344. (s) Campbell T. French, 6 T. R. 200 ; 2 H. Bl. 163, s. 0. {I) Sturdy v. Henderson, 4 B. & Aid. 592 (6 E. C. L. R.). («) Williams v. Germaine, 7 B. & C. 468 (14 E. C. L. R.) ; 1 M. & R. 394, s. 0. (x) Tindal v. Brown, 1 T. R. 168 ; Darbyshire t. Parker, 6 Bast, 3 ; 2 Smith, 195, s. 0. ; Parker-v. Gordon, 7 East, 38o ; 3 Smith, 358, s. 0. ; Haynes v. Birks, 3 Bos. & Pul. 599 ; Appleton v. Swectapple, Bayley, 6th ed. 234; 3 Doug. 137 (26 E. C. L. R.), s. 0. , (1) Lockwood V. Crawford, 18 Conn. 361 ; Carleton v. Bailey, 7 Poster, 230. See Lancaster Bank v. Woodward, 18 Penna. State Rep. 362; Goodwin v. Davenport, 47 Maine, 112; Jerome v. Stebbins, 14 California, 457 ; Parker v. Tuttle, 44 Maine, 459 ; Weeks v. Pryor, 27 Barbour, 79. A note on demand expressed to bear interest is a continuing security, and no delay in piesentment is of itself sufficient to discharge the indorser. Merrilt v. Todd, 23 New York, 28. As between a bond fide holder and the drawer of a dishonored check, no delay in demanding its payment is deemed to be so unreasonable as to bar a recovery by the holder, unless it appears that it worked an actual injury or loss to the drawer. Harbeck v. Craft, 4 Duer, 122; Farmers' Bank v. Butchers' Bank,- ibid., 219. ' OF PKESENTMENT FOB PAYMENT. 337 •with the principles of law. " Reasonable time," says Lord Coke, " shall be adjudged by the discretion of the justices before whom the cause dependeth ; and so it is of reasonable fines, customs and services, upon the true *state of the case depending before r*oAg-i them ; for reasonableness in these case belongeth to the knowledge of the law ; and therefore to be decided by the justices. Quam longum esse debet non definitur in jure, aed pendet ex dis- cretione justiciar iorum. And, this being said of time, the like may be said of things incertaine, which ought to be reasonable; for nothing that is contrary to reason is consonant to law."(y) Besides, the opinions of jurors have been so various, that there can be no certainty on the subject, unless it be held to be a question of law. Yet we have seen, that what is a reasonable time within which to present for , acceptance a bill drawn payable after sight has been held a question of fact for the jury, and the same point has been ruled as to the time of presentment for payment of a note payable on demand. («) A man taking a bill or note payable on demand, or a check, is not bound, laying aside all other business, to present or transmit it for payment the very first opportunity. It has long since been decided, in numerous cases, that, though the party by whom the bill or note is to be paid live in the same place, it is not necessary to present the instrument for payment till the morning next after the day on which it was received, (a) And later cases have established, that the holder of a check has the whole of the bank- ing hours of the next day within which to present it for pay- ment.(6) Negotiable instruments, payable on^ demand, may be distributed into Several classes, and the time within which they ought to be [y) Co. Litt. 56, b. (2) Manwaring v Harrison, 1 Stra. 50S ; Hankey t. Trotman, 1 W. Bl. 1, see ante, p. ITS, as to Presentment for Acceptance. (ffl) Ward V. Evans, 2 Ld. Eaym. 928 ; 6 Mod. 36, s. 0. ; Moore v. Warren, 1 Stra. 415 ; Fletcher v. Sandys, 2 Stra. 1248 ; Turner v. Mead, 1 Stra. 416 ; Hoar v. Da Costa, 2 Stra. 910 ; Appleton v. Sweetapple, Bayley, 6th ed. 234; 3 Doug. 137 (26 E. C. L.-B.), a. 0. (J) Pocklington t. Sylvester, Ohitty, 9th ed. 385 ; .Bobson v. Bennett, 2 Taunt. 388 ; Rlckford v. Ridge, 2 Camp. 537 ; Moule v. Brown, 4 Bing. N. C. 266 (33 B. C. L. E.); 5 Sco. 694, s. 0.; Hare v. Henty, 30 L. J., C. B. 302. As to checks, see ante. 22 338 OF PRESENTMENT FOR PAYMENT. presented for payment, and the consequences of a failure to make due presentment, are not precisely the same in every class. Negotiable instruments payable on demand are common commer- cial bills of exchange, checks, common promissory notes, bank notes, and bankers' cash notes and bankers' bills. r*onm ^^^^ conceived that a common bill of exchange(e) *pay- able on demand ought, if the parties live in the same place, to be presented the next day after the payee has received it. If the bill must be sent by post to be presented, it ought to be posted on the day next after the day on which it was received, and then the person who receives it by post, that he may present it, should do so on the day next following the day on which he receives it. Such, also, are the general rules regulating the presentment of bankers' checks, which are really bills of exchange ; but, as checks on bankers are now extremely common, it has been thought con- venient to discuss the presentment of checks more in detail in the Chapter relating to Checks.(c?) A common promissory note payable on demand differs from a bill payable oh demand, or a check, in this respect ; the bill and check are evidently intended to be presented and paid immediately, and the drawer may have good reasons for desiring to withdraw his funds from the control of the drawee without delay ; but a com- mon promissory note(e) payable on demand is very often originally intended as a continuing security, and afterwards indorsed as such. Indeed, it is not uncommon for the payee, and afterwards the indorsee, tO: receive from the maker interest periodically for many years on such a note. And sometimes the note is expressly made payable with interest, which clearly indicates the intention of the parties to be, that though the holder may demand payment immediately, yet he is not bound to do so. It is, therefore, conceived, that a common promissory note payable on demand, especially if made (c) The rule may be otherwise in respect of paper intended for circulation, and some descriptions of bankers' paper. Shute v. Robins, M. & M. 133 ; 3 0. & P. 80 (14 E. 0. L. E.), s. c. Or where peculiar difficulties interpose. See James v. Houl- ditoh, 8 D. & R. 40. (d) Ante, Chap. iii. on Checks, where some peculiarities distinguishing checks from bills of exchange payable on demand are pointed out. (e) Brooks T. Mitchell, 9 M. & W. 15. 0¥ PRESENTMENT FOR PAYMENT. 339 payable with interest, is not necessarily to be presented, the next day after it has been received, in order to charge the indorser; and that, when the indorser defends himself on the ground of delay in presenting the note, it will be a question for the jury, whether, under all the circumstances, the delay of presentment was or was not unreasonable. Bank notes and bankets' cash notes differ again from other pro- missory notes in this, that they are intended to pass from hand to hand, and are issued that they may circulate *as money, r*2041 returning to the bank as seldom as possible ; but they are not intended as a continuing security in the hands of any one holder. Therefore, a man who takes bank notes or bankers' cash notes in payment must present them,(/) or forward them for pre- sentment, the day after he receives them, in order to enable him, in the event of the bank failing, to sue the person from whom they were received on the consideration that was given for theva.{g) But, as 'it would be inconsistent with the very nature and design of such notes, that every man who takes them should present them for payment, it is sufficient, to exonerate the taker from the charge of laches, if he circulated them within the time within which he ought otherwise to have presented them. (A) And without circulating them, it should seem that, if according to the course of business it be usual to retain such notes a reasona- ble time, that may be an excuse for omitting instant presentment.(«) Moreover, the transmission of notes payable to bearer being attended with risk, the sender will, it seems, be allowed to cut the notes in halves, and send one set of halves on the next day, and one set the day after, or to send one set by coacb and one by post.(A) And it may make a difference in the time allowed for presentment if the notes be received by a servant or agent. (Z) The same rules which govern the presentment and circulation of bank notes also apply to such bankers' paper as may be fairly con- (/)' Vide the Chapter on Transfer. l§) Camidge v. AUenby, 6 B. & 0. 373 (13 E. C. L. R.) ; 9 D. & E. 391,. s. o. (A) Ibid., Robinson v. Hawksford, 15 L.'J., Q B. 311; 9 Q. B. 52 (58 E. C. L. ROj S- 0. (i) See Shute v. Robins, M. & M.'133; 3 Car. & P. 80 (14 E. CL. R.), s. o. (A) Williams v. Smith, 2 B. & Aid. 496. («) Jaines v. Houlditch, 8 D. & R. 40. 340 OF PRESENTMENT FOR PAYMENT. sidercd part of the circulating medium of the country. Such are the, hills of a coun,try banker on his London correspondent. (ra) A bill or note on which no time of payment is specified is payable on demand. (w)(l) Presentment for payment should be made during the usual hours ,of business, and, if at a banker's, withtn banking hours.(o) If r* 20*^1 *^® P*'"*y ^^^° '^ *° P*^ *^® ^^^^ ^® °°* ^ *banker, present- ment may be made at any time of the day, when he may reasonably be expected to be found at his place of residence, or business, though it be six, seven, or eight o'clock in the evening.{^) And even though there be no person within to return an answer.(g') Lord Tenterden, C. J.: "As to bankers, it is established, with reference to a ?yell-known rule of trade, that a presentment, out of hours of business, is not sufficient; but in other cases, the rule of law is, that the bill must be presented at a reasonable hour. A presentment at twelve o'clock at night, when a person had retired to rest, would be unreasonable ; but I cannot say that a presentment between seven and eight in the evening is not a presentment at a reasonable time."(r)(2) (m) Shute v. Robins, M. & M. 133 ; 3 0. & P. 80 (14 B. 0. L. R.), s. o. (n) Bayley, 6th ed. 115 ; Whitlock v. Underwood, 2 B. & 0. 157 (9 E. 0. L. R.) ; 3 D. & R. 356, B. 0. ; and see the Chapter on the Form of Bills.- (o) Parker T. Gordon, 1 East, 385 ; 5 Smith, 358, s. 0. ; Elford v. Teed, 1 M. & Sel. 28 ; Jameson t. Svvinton, 2 Taunt. 224;_Whitaker v. Bank of England, 1 C, M. & R. 744 ; 6 0. & P. 700 {25 B. C. L. R.), s. 0. In this case the bill had been pre- sented at 11 A.M., and payment had been refused for want of assets; ii was after- wards, on the same day, presented after banking hours, at 6 p.m., assets having in the meantime been received. It was intimated by Lord Abinger, that the bank ought to have apprised the notary who presented the bill of the receipt of assets. ( p) Barclay v. Bailey, 2 Camp. 527 ; Morgan v. Davison, 1 Stark. 1 14 (2 B. 0. L. R.). (y) Wilkins v. Jadis, 2 B. & Ad. 188 (20 E. C. L. R.) 1 M. & Ry. 41, s. 0. (r) Ibid. I and see Triggs v. Newnham, 10 Moore, 249; 1 0. & P. 631 (12 E. C. L. R.), s. c. In America it is held, that bnsinesg hours, except in the case of banks, range through the whole day, down to the hours of rest in the evening. Where a note was made payable at a bank, a demand made at the bank upon the proper day after banking hours, the officers being there, and a refusal, the cashier stating that no funds were deposited for the purpose, held that the demand was sufficient. See Byles on Bills, 3d American edition, 262. (1) Green v. Drebilbis, 1 G. Greene, 552. (2) Business hours, except in the case of banks, range through the whole day OF PRESENTMENT FOR PAYMENT; 341 Where a bill or note was made or accepted, payable at a par- ticular .place, it was formerly a point much disputed, whether a presentment at that place was necessary, in ordei- to charge the acceptor, maker, or other parties. At length, as we have already seen, it was decided in the House of Lords, that an acceptance, payable at a particular place, was a qualified acceptance, render- ing it necessary, in an action against the acceptor, to aver and prove presentment at such place. (s) This decision occasioned the passing of the 1 & 2 Geo. 4, c. 78, by which it is enacted, that an acceptance, payable at a particular place, is a general acceptance, unless expressed to be payable there only, and not otherwise or elsewhere. On this statute it has been decided, that an accept- ance is general, though the bill be made payable at a particular place by the drawer, and not by the acceptor.(*) *A decla- r^onfl-] ration in an action against the acceptor, alleging a bill to be accepted- payable at a banker's, need not aver presentment at the house of that banker.(M) "Since the statute," says the Court of Error, "a bill drawn generally on a party may be accepted in three different forms, i. e., either first, generally, or, secondly, payable at a particular banker's, or, thirdly, payable at a particular banker's and not elsewhere. If the drawee accepts in the second form, payable at a banker's, he undertakes, since the statute, to pay the bill at maturity when presented for payment, either to himself or at the banker's. Here the bill was accepted according to the second of these three forms. "(a;) («) Rowe T. Young, 2 B. & B. 165 ; 2 Bligh, 391, s. o. (t) Selby v. Eden, 3 Bing. 611 (11 B. C. L. R.); H Moo. 511, s. c; Payle v. Bird, 6 B. & C. 531 (13 B. C. L. R.) ; 9 Dowl. & R. 639 ; 2 C. & P. 303 (12 E. C. L. R.), s. 0. ; Roach t. Johnston, Hayes & Jones, 246. (m) Halstead t. Skelton, 5 Q. B. 92 (48 B. 0. L. R.). {x) Ibid. down to the hours of pest in the evening. Cayuga Bank v. Hunt, 2 Hill, 634; Nehau v. Fotterall, 7 Leigh, 179 ; Dana t. Sawyer, 9 Shepl. 244. Where a note was made payable at a bank, a demand made at the b.ink upon the proper day after banking hours, the officers being there, and a refusal, the cashier stating that no funds were deposited'for the purpose, held that the demand was sufficient. Cohen T. Hunt, 2 Smedes & Marshall, 227 ; The Bank v. Hamer, 7 Howard (Miss.), 448 ; Flint T. Rogers, Shepl. 67 ; Thorpe v. Pecks, 2 Williams, 127. A demand at the bank, where the note is made payable, when the maker had no funds, after banking hours, held to be sufficient. Bank of Syracuse v. HoUister, 17 New York, 46. Contra, if he had funds. Newark India Rubber Co. v. Bishop, 3 E. D. Smith, 48, See Shepherd v. Chamberlain, 8 Gray, 225. As to demand or presentment after busi- ness hours, see Farnsworth v. Allen, 4 Gray, 453 ; Allen v. Avery, 47 Mayie, 287 ; Barbarous v. Waters, 3 Metcalfe (Ky.), 304. 3J2 OF PKESBNTMENT FOR PAYMENT. In an action against the drawer, or other indorser, if the bill be accepted, and payable at a particular place named by the acceptor, it is still necessary to prove j)resentnient there. (y) So if the bill be rfrawM, • payable at a particular place, presentment must be made there in order to charge the drawer. "The doubt," says Tindal, 0. J., "which had been formed before the statute, as to the effect of an acceptance, payable at a particular place, was con- fined to the case where the question arose" between the holder and the acceptor: in cases between the indorsee and the drawer, upon a special acceptance by the drawee, no doubt appears to have existed, but that a presentment at a "place specially designated in the acceptance was necessary, in order to maike the drawer liable upon the dishonor of the bill by the acceptor. Still less did the doubt ever extend to cases where the drawer directed, by the body of the bill, that the money should be paid in a particular place. Such, then, being the state of the drawer's liability at the time the statute was passed, it must still remain the same, unless that statute has made an alteration therein. But it appears to us that the statute neither intended to alter, nor has it in any manner altered, the liability of drawers of bills of exchange, but that it is confined in its operation to the case of acceptance alone.(2)(l) [y) Gibb v. Mather, 8 Bing. 214 (21 E. C. L. R.) ; 1 M. & Sc. 38V;: 2 0. & J. 254, s. 0.; Saul v. Jones, 28 L. J., Q. B. 37 ; 1 E. & E. 59 (102 E. 0. L. R), s.'c. (2) Gibb V. Mather, ubi aupra. See Parks v. Edge, 1 0. & M. 429 ; 3 Tyr. 364, s. 0. ; Harris v. Parker, 3 Tyrw. 370 ; Walter v. Cubley, 2-0. & M. 151 ; 4 Tyr. 87, s. 0. ; Boydell v. Harkneeg, 3 C. B. 168 (54 E. C. L. R.). (1) It is unnecessary when a bill or note is made payable at » particular place, to aver demand at such place in order to charge the maker or acceptor. Dockrs.y V. Dunn, 37 Maine, 442 ; Carter v. Smith, 9 Gushing, 321 ; NichoUsT. Pool, 2 Jones (Law), 23 ; Hubbell y. Lord, 9 Texas, 472 ; Middleton v. Boston Locomotive Works, 2 Casey, 257; M'Kenzie v. Durant, 9 Richardson (Law), 61 ; Martin v. Hamilton, 5 Harrington, 3l4, 329; Reeve v. Pack,_ 6 Michigan, 240; Terbell v. Downer, 1 Wil- liams, 509. See Wild v. Van Valkenburg, 7 California, 166 ; Montgomery v. Tult, 11 Ibid. 307. Unless he can show that by failure to make such demand he has been injured. M'Oalop v. Pinker, 12 Louisiana Annual, 551 ; Freeman r. Curran, 1 Minnesota, 169 ; Nichols v. Pool, 2 Jones (Law), 23. Presentment of a note pay- able at a particular place must be made at that place, in order to charge the indorser, and no further presentment need be made. Lawrence v. Dobyns, 30 Mis- souri, 196; Ferner v. Williams, 37 Barbour, 9. When a note is payable at a par- ticular place, a personal demand is unnecessary. Troy Bank v. Grant, Hill & Denio, 119. When the bill is addressed to the drawee at a particular house and is accepted generally by him, the address indicates the place where it is to be presented for payment, and a presentment there is sufficient as against the drawer and indorsers. OF PRESENTMENT FOR PAYMENT. 843 If the bill be made payable at a banker's, a presentment there will sufiBce.(a) And if the bill be accepted, payable *at a r*2071 banker's, which banker happens to become the holder at its maturity, that fact alone amounts to presentment, and ne other proof is necessary. (6) If a bill be made payable in a particular town, a presentment at all the banking houses there will suffice ;(c) if at one of two towns, a presentment at either ;((J!) if a particular house be pointed out by the bill as the acceptor's residence, a pre- sentment to any inmate,(e) or, if the house be shut up, at the door will suffice. (/) But where a bill is accepted, payable at a particular place,(p') it is not nece,s8ary in an action against the drawer(A) to state the acceptance in the declaration, and, therefore, not necessary to state it to be at a particular place, nor to allege presentment at that place. Such a presentment as the acceptance requires is (a) Saunderson v. Jadge, 2 H. Bl. 509 ; Harris T. Parker, 3 Tyrvr. 370. (i) Bailey v. Porter, 14 M. & W. 44. (c) Hardy v. Woodroofe, 2 Stark. 319 (3 E. 0. L. E.). (d) Beeching v. Gower, Holt, N. P. 0. 313 (3 B. 0. L. R.). (e) Buxton v. Jones, 1 M. & G. 83 (39 E. C. L. R.). (/) Hine v. AUely, 4 B. & Ad. 624 (24 E. 0. L. R.) ; 1 N. & M. 433, s. 0. (g) In an action against ttie acceptor the bill may be described as payabl) though the mention of the place be in a distinct sentence preceded by a full stop.(9') But, if the place of payment be merely mentioned in a memo- randum, that is held to be only a direction, and not to qualify the contract; and, consequently, a presentment there is not essen- tial.M And an averment in the declaration, *that the ^ ^ ^ note was made payable there, has even been held a fatal L -' misdescription. (s)(l) act, the holder must have presented there, and conld present no where else. Now, he may present effectually there ; but, as was supposed, until the decision in Gibb V. Mather, may also present to the acceptor himself. [p) Saunderson v. Bowes, 14 East, 500 ; Howe v. Bowse, 16 Bast, 112 ; Eowe t. Young, 2 B. & B. 165 (6 B. 0. L. R.) ; Williams T. "Waring, 10 B. & C. 2 (21 E. C, L. R.); Emblin t. Dartnell, 12 M. & W. 830 ; Spindler. T. Grellett, IV L. J., Exch. 6 ; 1 Exch. 384, s. 0. ; but see Nichols v. Bowes, 2 Camp. 498. {q) Vanderdonckt v. Thelluson, 19 L. J., C. P. 13 ; 8 0. B. 812 (65 E. C. L. R.), s. 0. [r) Price v. Mitchell, 4 Camp. 200 ; Williams T. Waring, 10 B. & C. 2 (21 E. C. L. R.) ; 5 M. & R. 9, s. o. But in' a case where the body of the note was printed, except the sum, the names of the parties, and the date, and the memorandum of the place at which the note was payable, was also printed, Lord EUenborough held a special presentment there necessary. Trecothick T. Edwin, 1 Stark. 468 (2 E. C. L. R.) ; aed quaere. The meraorandum is no part of the note, though it be preceded by the words "payable at." Masters v. Barretto, 19 L. J., C. P. 50; 8 0. B. 433 (65 E. C. L. R.), s. c. («) Exon V. Russell, 4 M. & Sel. 505. (1) If a bill is accepted payable at a particular place, and such acceptance is acquiesced in by the holder, he must demand payment at such place in order to charge the drawer. Tuckerman v. Hartwell, 3 Greenleaf, 147. Where a bill is made payable at a particular place, presentment for payment at that place is suf- ficient to hold the drawer. Evans v. St. John, 9 Porter, 186. Where a note is pay- able at a given time and place, no demand of payment at such time and place is necessary. Where the maker is, however, ready at such time and place with the means of payment, such readiness is equivalent to tender. Otis v. Barton, 10 N. Hamp. 433; Brabston v. Gibson, 9 Howard, U. S. 263; Lyon v. Williamson, 27 Maine, 149 ; Bradford v. Cooper, 1 Louis. Annual Rep. 325 ; New Hope Delaware Bridge Co. v. Perry, 11 Illinois, 467. When a note is payable at a certain bank, it is sufficient to charge the indorser that the note is there at maturity to be delivered if paid without a special demand. Folger v. Chase, 18 Pick. 63 ; Jenks v. Doyles- town Bank, 4 Watts & Serg. 505 ; State Bank v, Napier, 6 Humph. 270; Goodloe v. Godley, 13 Smedes & Marshall, 233 ; Roberts v. Mason, 1 Ala. 373. In such a case in an action against the indorsers, it is not necessary for the holder to prove that 346 OF PKESENTMENT FOE PAYMENT. The consequence of not duly presenting a bill or note is, that all the antecedent parties are discharged from their liability, whether on the instrument, or on the consideration for which it was given. The acceptor or maker, however, still continues liable. And, indeed, presentment is not in general necessary for the purpose of charging him ; the action itself being held to be a suflScient demand, and that though the instrument be made payable on demand.(t) But if a bill or note be payable at or after sight, it must be pre- sented in order to charge the acceptor or maker. (m) So must a note payable at a particular place, as we have just seen. (a;) But though the absence of demand be in general no defence, yet if the acceptor or maker pays on action brought without any previous demand, it seems the Court would, where they have the power, take the question of costs into consideration. (y) There are circumstances, however, which will excuse the neglect to present for payment.(3)(l) (t) Rumball v. Ball, 10 Mod. 38; Prampton v. Coulson, 1 Wils. 33; Norton v. EUam, 2M. & W. 461. («) Dixon T. Nuttall, 1 C, M. k R. SOT ; 6 0. & P. 320 (25 E. C. L. R.), s. c. (a;) Khodes v. Gent, 5 B. & Al. 244 (7 E. 0. L. R.). Quce.re as to the effect of non-presentment of a bill at a particular place, if the drawee had lodged money there and lost It by the holder's delay. [y) M'Intosh v. Haydon, 1 R. & M. 362. (z) An Impossibility to present a bill for payment on the day it falls due, where the holder is in no fault, may render a subsequent presentment sufficient to charge the cashier was at the bank during all the business hours of the day of payment. The presumption is that he did his duty. Brittain v. The Doylestown Bank, 5 Watts & Serg. 87. It is sufficient evidence of demand of payment and of refusal to pay a note payable at a particular place, if the note is left there, and no funds are pro- vided to take it up. Nichol v. Goldsmith, 7 Wend. 160 ; Wooden v. Foster, 16 Barbour, 146; Merchants' Bank v. Elderkin, 25 New York, 178 ; Hallowell v. Curry, 6 Wright, 322. The want of funds of the drawee at the bank will excuse the demand there, but this must be averred. Bank of Wilmington v. Cooper, 1 Har- rington, 10 ; Gillett v. Averill, 5 Denio, 85 ; Allen v. Smith, 4 Harrington, 234. A note made negotiable at a bank is not therefore payable there. Barrett v. Wills, 4 Leigh, 114 If a note is made payable at a particular bank, and if such bank before maturity ceases to exist, a demand in order to hold an indorser is excused. Roberts V, Mason, 1 Alabama, 373 ; Central Bank v. Allen, Shepl. 41. (1) An impossibility to present a bill for payment on the day it falls due, where the holder is in no fault, may render a subsequent presentment sufficient to charge the drawer ; aliter of oversight or negligence in the post-office, by which a bill mis- OP PRESENTMENT FOR PAYMENT. 347 Where a bill is seized under an extent, the indorsers are not discharged by non-presentment, for laches is not imputable to the Crowri.(a) Neglect of presenting for payment is, as we have seen, excused in the case of a bank note payable on demand, and perhaps of other paper meant for circulation, if the holder, within the period at which he should have presented it, puts it into circulation.(6) *If the acceptor or maker abscond, and his house be shut r^oi qI up, the bill or note may be treated as dishonored ; but not if he have merely removed. (c)(1) If the drawee cannot be found, the drawer ; aliter of negligence or oversight in the Post 0£Bce, by which a bill mis- carries, so that it cannot be presented till after it is due. The fact that a bill is lost is an excuse for delay in making demand, but for no more than a reasonable delay. See Byles on Bills, 3d American edition, 267. (a) West on Extents, 29, 30. (6) Camidge v. Allenby, 6 B. & 0. 373 (13 E. 0. L. R.) ; 9 Dowl. & E. 391, s. 0. (c) Anon., 1 Ld. Raym. 743; Hardy v. Woodroofe, 2 Stark. 319 (3 E. 0. L. R.) ; Hine v. AUely, 4 B. & Ad. 624 (24 E. C. L. R.) ; 1 N. & M. 433, S. 0. ; Collins t. But- ler, 2 Stra. 1087. See also Sands v. Clarke, 19 L. J., 0. P. 84 ; 8 C. B. 751 (65 E. C. L. R.), s. c. Where the maker of a note is a seaman without a domicil in the state, who goes a voyage about the time the note falls due, no demand on him is necessary to charge the indorser. Absence of the maker of a note on a voyage at sea, his family still' residing in the state, will not excuse a demand of payment so as to discharge an indorser. See Byles on Bills, 3d American edition, 267. , carries so that it cannot be presented till after it is due. Schofield v. Bayard, 3 Wendell, 438. A bill of exchange was deposited by the holder in the post-ofB:ce, in season to reach the place where it was payable before it fell due by the regular course of the next mail ; and there was no reason to believe that it would not be there duly delivered. It was actually sent by that mail ; but by mistake of the postmaster where it was mailed, the package containing it was misdirected, and in consequence thereof, was carried beyond its place of destination. The mistake being discovered, the bill was returned, and reached the place where it was payable on the day after it became due, which was Sunday. On the morning of the following day, the bill was delivered from the post-ofBce to the agent of the holder, and payment demanded of the acceptor. Held, that the holder was not chargeable with a want of reasonable diligence. Windham Bank v. Norton, 22 Connecticut, 213. The fact that a bill is lost is an excuse for delay in making demand, but for no more than a reasonable delay. Aborn v. Bosworth, 1 Ruode Island, 401. (1) Where the maker of a note is a seaman, without a domicil in the state, who goes a voyage about the time the note falls due, no demand on him is necessary to charge the indorser. Moore v. Coffield, 1 Dev. 247. Absence of the maker of a note on a voyage at sea, his family still residing in the state, will not excuse a de- mand of payment so as to charge an indorser. Dennie v. Walker, 7 N. Hamp. 199. 348 OF PEBSBNTMBNT FOR PAYMENT. it will be sufficient to plead that fact, without averring that due search was made for him.(«?) Under an allegation that the bill was presented, evidence that the drawee could not be found is inadmis- sible.(e) Absence of effects in the drawee's hands will, as against the drawer, dispense with the necessity of presenting for payment,(/) but not as against a subsequent indorser.(^) A declaration by the acceptor, before a bill is due, that he will not pay, though made in the drawer's presence, does not dispense with presentment to the acceptor arid notice to the drawer.(A)(l) (d) Starke t. Oheeseman, Carthew, 509 ; 1 Ld. Raym. 538, s. o. (e) Leeson v. Piggott, 1788 ; Bayley, 6th ed. 409 ; and see Smith v. Bellamy, 2 Stark. 223 (3 E. 0. L. E.) ; Burgh v. Legge, 5 M. & W. 421. (/) Terry t. Parker, 1 Nev. & Perry, 752 ; 6 Ad. & B. 502 (33 E. 0. L. R.), s. o. See Prideaux v. Collier, 2 Stark. 57 (3 E. C. L. R.) ; Hill v. Heap, D. & R., N. P. C. 57; De Berdt v. Atkinson, 2 H. Bl. 336. But see the observations on this last case in Sands v. Clarke, 19 L. J., 0. P. 87 | 8 C. B. 751 (65 E. C. L. R.), s. o. ; and Maltass v. Siddle, 28 L. J., C. P. 258 ; 6 C. B , N. S. 494 (95 E. C. L. R.), a. c. ; Ex parte Bignold, 1 Deacon, 728 ; 2 Mont. & Ayr. 633, s. c. {g) Saul V. Jones, 28 L. J., Q. B., 37 ; 1 K. & E. 59 (102 B. C. L. R.), s. o. (A) Ex parte Bignold, 1 Deac. 728 ; 2 Mont. & Ayr. 633, s. 0. ( 1 ) Where a note made payable at a bank, is not at the bank when it falls due, and no demand is then made on the maker, the indorsee cannot charge the indorser by giying him reasonable notice Df non-payment, although the maker bad previously told the indorsee that it would be useless to send the note to the bank, because he could not pay it. See Bank v. Spencer, 5 Mete. 308 ; Lang v. Young, 8 English, 401. The holder of a note need not demand payment and give notice, when the indorssr, a few days before the. maturity of the note, writes to him that the maker has failed, and asks indulgence until funds can be realized from security given by the maker. Spencer v. Harvey, 17 Wend. 489. One who indorses a promissory note, inserting over his signature a waiver of demand and notice, is not entitled to any demand and notice. Woodman v. Thurston, 8 Gushing, 157. So an oral waiver at that/time. Barclay v. Weaver, 19 Penna. State Rep. 396. An agreement with the maker by the payee, after he had negotiated it, that he would pay it and take it up, amounts to a waiver of demand and notice, and such agreement enures to the benefit of the in- dorsee. Marshall v. Mitchell, 35 Maine, 221. Receiving from the maker a sum suf- ficient to meet the note, or taking ample security as indemnity for the same, amounts to a waiver, by the indorser, of due presentment. Lewis v. Kramer, 3 Maryland, 265. When copartners purchase goods together, and give a promissory note therefor, with one of them as maker and the other as indorser, the latter is not liable on his indorsement unless he be duly notified of the dishonor of the note. Foland^v. Boyd, 22 Penna. State Rep. 476. As to when want of funds in the hands of the drawee will excuse demand see OF PRKSENTMENT FOE PAYMENT. 349 It has been held, that neglect to present bankers' cash notes, the banker having failed, will be excused by returning them in due time.(«) Advantage from such neglect is waived by any antecedent party who subsequently, with notice of the laches, promises to pay the bill, or makes, or promises to make, a partial payment on account of it.(A) (j) Henderson v. Appleton, Chit. 10th ed. 246; Rogers v. Langford, 1 0. & M. eST i Robson v. Oliver, 10 Q. B. 704 (59 B. 0. L. R.). See ante. (A) Vaughan v. Fuller, 2 Stra. 1246 ; Hopley v. Dufresne, 15 Bast, 275 ; Haddock V. Bury, 7 Bast, 236 | Hodge v. Fillisj 3 Camp. 463. See Goodall v. Dolly, 1 T. R. 712 ; Anson v. Bailey, B. N. P. 276. Brewer t. Rupert, 24 Illinois, 182 ; Mobley v. Clark, 28 Barbour, 390 ; Healy v. Gil- man, 1 Bosworth, 235 ; Case v. Morris, 7 Casey, 100 ; Carson v. Alexander, 34 Missis- sippi, 528 ; Wood v. Gibbs, 35 Ibid., 559 ; Wood t. McMeans, 23 Texas, 481 ; Dickerson T. Turner, 12 Indiana, 223 ; Sberer t. Baston Bank, 9 Casey, 134 ; Coyle v. Smith, 1 E. D. Smith, 4U0 ; Whaley t. Houston, 12 Louisiana Annual, 585 ; Miser t. Tro- vinger, 7 Ohio (N. S.), 281 j Blankenship v. Rogers, 10 Indiana, 333 ; Hpangler T. McOaniel, 3 Indiana, 275. An admission by the indorser of a check, that the drawer cannot pay, dispenses with demand and notice. Taylor t. French, 4 B. D. Smith, 450. It is presumed that the drawee has funds until the contrary appears, and this presumption is not changed by a waiver or want of acceptance. Galladay v. Bank, 2 Head, 57. Taking security by the indorser of the maker after maturity supposing himself to be liable, is not a waiver of demand and notice. Otsego County Bank v. Warren, 18 Barbour, 291. Security held by indorser to indemnity him against lia- bility does not dispense with demand and notice. Moses v. Ela, 43 New Hampshire, 557 ; Wilson v. Beuier, 14 Wisconsin, 380. That n payee included the amount of an unpaid draft in an account sent to the drawer, to which no objection was made, dispenses with the necessity of proving demand and notice. Carson v. Alexander, 31 Mississippi, 528. Where a note is made for the accommodation of the payee, with the understanding that tlie maker is not to pay it, demand and notice is not necessary to hold the payee as iudorser. Torrey v. Foss, 40 Maine, 74. Where a bill is accepted for the accommodation of the drawer, he is not discharged by want of demand or notice. Ross v. Bydell, 5 Duer, 462. When the payee wrote on the note " I assign this note to A. and indorse the prompt payment of it," it was held that demand and notice were not necessary. Tatem v. Bonner, 27 Mississippi, 760. A waiver of notice of protest will not excuse want of demand. Scull v. Mason, 7 Wright, 99. The words "protest and notice waived" — waive also demand. Gordon V. Montgomery, 19 Indiana, 110. The holder may prove by oral testimony that, at the time of the indorsement of a negotiable note, it was agreed between the maker, indorser and holder, that payment should not be demanded at the maturity of the note. Barclay v. Weaver, 7 Harris, 396. Sickness of holder when an excuse for demand and notice. Wilson v. Senier, 14 Wisconsin, 380. 350 OF PAYMENT. *As to the proper mode of pleading, where the plaintiff ■- -I relies on any dispensation with presentment, see the Chap- ter on Pleading. The defendant's part payment or promise to pay, made after the bill or note is due, is primd facie evidence of presentment.(i)(l) [*212] *CH AFTER XV. OP PAYMENT. TO WHOM IT SHOULD BE} MADE . .212 .TO A WBONGFOl HOLDER OF INSTKU- MENTS PAYABLE TO BEABEIt . . 213 OF INSTEnMENTS NOT PAYABLE TO BEARER 214 EFFECT OF PAYMENT BY ACCEPTOR . 214 BY DRAWER 214 MEANING OF THE WORD "retire" . 215 BY A STRANGER .... 216 BY ONE, WHO IS BOTH AGENT FOR THE ACCEPTOR AND ALSO INDORSER . 216 WHEN TO BE MADE .... 216 AT WHAT TIME OF DAY . . .216 SUBSEQUENT TENDER . . . 216 PREMATURE PAYMENT . . .217 AFTER ACTION BROUGHT . . .217 PAYMENT BY BANKERS' NOTES OH CHECKS ..... 217 WHAT AMOUNTS TO PAYMENT . . 218 LEGACY 218 APPROPRIATION OF PAYMENTS . . 218 RATEABLE APPROPRIATION. . . 220 PART PAYMENT 221 WHEN PAYMENT WILL BE PRESUMED . 221 EVIDENCE OP PAYMENT . . . 222 OF DELIVERING UP THE BILL . . 222 OF GIVING A RECEIPT . . . 222 EFFECT OF RECEIPT .... 223 TENDER OP PART PAYMENT . . 223 PLEA OF PAYMENT .... 223 RETRACTATION OF PAYMENT . . 223 Payment should be made to the true holder of the bill ;(a) for payment to any other party is no discharge to the acceptor; unless, indeed, the money paid finds its way into the holder's hands, and the holder has treated it as received in liquidation of the bill. A. drew a bill upon defendant, which defendant accepted ; A. then {I) Croxon v. Worthen, 5 M. & W. 5 ; Luadie v. Robertson, 7 Bast, 232 ; Camp- bell V. Webster, 15 L. J., C. P. 4j 2 0. B. 258 (52 E. C. L. 11.), s. c; Greenway v. Hindley, 4 Camp. 52. ' (a) See the definition of the word holder, ante, Chapter i. (1) A drawer's promise to pay an overdue checl£, without knowing the fact that it had not been duly presented, is not binding upon him. Kelley v. Brown, 5 Gray, 108. Indorser discharged for want of demand, is not liable on his subsequent pro- mise made in ignorance of the fact. Low v. Howard, 11 Gushing, 268. OF PAYMENT. 351 indorsed it to the plaintiffs, his bankers, -who entered it to the credit of plaintiffs' account, and, at maturity, presented it to the defendant for payment, and it was dishonored. The plaintiff then debited ,A. with the aimount, but did not return him the bill. A few days afterwards defendant paid the amount to A.; A. still continued his banking account with the plaintiffs, and, at different times, paid in more money than was sufficient to cover the amount of the bill, and all the preceding items which stood above it in the account, though there was always a balance against him larger than the amount of the bill. A. failed, and the plaintiffs proved for the whole of their balance under his commission. They *then brought this action on the bill against the defendant, the L J acceptor. Best, C. J. : " The payment to A. would not of itself have discharged the defendant, the plaintiffs having been at that time the holders, and entitled to the amount of the bill ; but the ground on which the defendant is discharged is, that the plaintiffs not only entered the bill to the credit of A., but treated it as hav- ing been paid."(J) There are some cases in which payment to a wrongful holder is protected, and others in which it is not.(e) If a bill or note, pay- able to bearer, either originally made so, or become so by an indorsement in blank, be lost or stolen, we have seen that a bond fide holder may compel payment. Not only is the payment to a bond fide holder protected, but payment to the thief or finder him- self will discharge the maker or acceptor,((:i) provided such pay- ment were not made with knowledge or suspicion of the infirmity of the holder's title, or under circumstances which might rea- sonably awaken the suspicions of a prudent man.(e) "For it is a general rule, that where one of two innocent persons must suffer from the acts of a third, he who has enabled such third person to (i) Field v. Carr, 5 Bing. 13 (15 B. C, L. R.) ; 2 Moo. & P. 46, s. 0. Where money is paid into a bank on the joint account of persona not partners in trade, the bankers are not discharged by payment of the check of one of those persons, drawn without the authority of the qthers. Innes v. Stephenson, 1 Moo. & Rob. 145 ; Stone v. Marsh, E. & M. 369, unless one alone afterwards becomes entitled to receive it. Stewart y. Lee, Mood. & M. 160 ; see ante. (c) As to payment of a forged bill, see post, the Chapter on Forgery of Bills. {d) Smith V. Sheppard, Sel. Oa. 243 ; MS. of Mr. Serjeant Bond, Chitty, 10th ed; 180. (e) We have seen that nothing short of fraud will affect the title of a transferee for value. 352 OF PAYMENT. ^ occasion the loss must sustain it."(/) And supposing the equity of the loser and payer precisely equal, there is no reason why the law should interpose to shift the injury from one innocent man upon another. But, if such a payment be made under suspicious circumstances, or without reasonable caution, or out of the usual course of business, it will not as between all parties and for all purposes discharge the payer. (^)(1) Payment before the bill or note is *due, or long after it is due, or, in case of a check, L ■' long after it is drawn, or when the marks of cancellation are on the instrument, are examples of payment out of the usual course of business. And, therefore, though a check be really drawn by a banker's customer, but torn in pieces before circulation by the drawer, with intention of destroying it, and a stranger, picking up the pieces, pastes them together, and presents the check soiled and so joined together to the banker, and he pays it, the banker cannot charge his customer with this payment, for the instrument was cancelled, and carried with it reasonable notice that it had been cancelled. (A) If the bill or note be not payable to bearer, but transferable by indorsement only, and be paid to a party whose title is made through the forged indorsement, the payer is not discharged. (i) (/) Lickbarrow t. Mason, 2 T. R. 70. (g) There is at present no decided case establishing that a party honestly paying, is in as good a situation as a party honestly discounting. See, however, the obser- vations of Best, C. J., in Snow v. Peacock, 2 0. & P. 221 (12 B. C. L. R.), and the observations of Parke, B., in Robarts v. Tucker, 16 Q. B. 575 (71 E. 0. L. R.). The question as to the validity of a payment usually arises between a customer and his banker. But a banker paying a bill made payable at his bank must, it is conceived, exercise due caution. (A) Scholey v. Ramsbottom, 2 Camp..485. (i) It has been contended, that each indorsement is a warranty of the validity of the prior indorsements, and that an indorser, who has been paid by the acceptor, is liable, if the indorsements to him turn out invalid, to be sued by the acceptor on an implied undertaking that he, as holder, was entitled to receive the amount of the bill. Bast India Company v. Tritton, 3 B. & C. 280 (10 B. L. C. R.) ; 8 Dowl. & R. 214, a. c; Smith v. Mercer, 6 Taunt. 76 (1 B. C. L. R.) ; 1 Marsh, 453, s. o. L'en- (1) A payment made to the party who was holder at the time of protest, without notice of his having subsequently transferred it, is no defence. Davis v. Miller, 14 Grattan, 1. The drawee of a bill is bound at his peril to ascertain that ihe person ■ to whom he makes payment is the person entitled. He cannot defend against the payee on the ground that he has paid the amount of the bill to another person of the same name, in good faith, and in the usual course of business, with nothing to excite suspicion. Gfaves v. The American Exchange Bank, 17 New York, 205. OF PAYMENT. • 353 A bill is not discharged, and finally extinguished, until paid by or on behalf of the acceptor ; nor a note until paid by or on behalf of the maker.(l) It was long an unsettled question, whether payment in part or in full by the drawer to the holder will discharge the acceptor pro tanto, or whether the holder may, nevertheless, recover the whole amoi^t from the acceptor, and hold an equivalent to the amount received from the drawer,- as money received of the acceptor to the drawer's use. (A) It has been *thought that the holder can only recover of the acceptor the amount of the bill minus ■- -• the sum paid by the drawer. (Z) The acceptor being the principal, and the drawer the surety, it might seem that a payment by the dosseur est garant solidaire aveo les autres signataires de la vSrite de la lettre ainsi que du paiemeat h. I'^cheance. Pardessus, 376. Toua ceux qui ont sign§, accepte, ou endoss6 une lettre de change, sont tenus h, la garantie solidaire euvers le porteur. Code de Commerce, 140 ; Lovell v. Martin, 4 Taunt. 799. See McGregor v. Rhodes, 25 L. J., Q. B. 318 ; 6 E. & B. 266 (88 E. C. L. R.), s. c. ; Robarts v. Tucker, 16 Q, B. 575 (71 E. C. L. R.). [h] In Jonson v. Kennion, 2 Wils. 262, recognized in Walwyn t. St. Quintin, 1 B. & P. 658, it was held, that the holder was entitled to recover the whole amount ; but in Bacon v. Searles, 1 H. Bl. 88, it was considered that he could recover only the difference, and the report of the case of Johnson v. Kennion was reflected on. See Pierson v. Dunlop, Cowp. 571 ; Reid v. Furnival, 1 C. & Mees. 538 ; 5 0. & P. 499 (24 E. C. L. R.), s. 0. ; Browne v. Rivera, Doug. 445. To the doctrine that a payment by a subsequent party operates as a satisfaction of the bill to the amount of the payment, it may be objected, that if the bill be satisfied, the party making the payment can maintain no action on the bill against a prior part}^, but must sue such prior party for money paid to his use. Whereas it is the constant practice for an intermediate party, who has paid the bill, to sue prior parties on the hill. See Callow V. Laurence, supra. The answer to this objection might have been, that such a payment is as to the rights and liabilities of parties, subsequent to the party paying, a satisfaction, but as to the rights and liabilities of prior parties, it may, at the election of the party paying, merely operate to place him in the position of a party to whom a negotiable instrument is assigned a second time. [l) Lord Abinger appears to have so ruled at nisi prius. Hemming v. Brook, 1 Car. & M. 57. (1) A payment made by a joint promisor on a note due cannot, by an arrange- ment with the payee, be revoked so as to revive the debt against the other parties. Frost V. Martin, 6 Foster, 422. As a general rule, the acceptor cannot be discharged except by payment or release. Cronin y. Kellogg, 20 Illinois, 11. The payee of a note, in her last sickness, handed the note to a person to be given to the maker in payment of board and nursing, held to be a valid cancellation of the note. Edwards V. Campbell, 23 Barbour, 423. The mere production of a bill by an accommoda- tion acceptor is not even primd. facie evidence of payment by him ; it must be shown to have been in circulation after accejitance. Curry v. Kurtz, 33 Mississippi, 24 23 354 • OF PAYMENT. drawer discharges the acceptor's . liability to the holder pro tanto, and makes 1;he acceptor liable to the drawer for money paid to his use, and that if the drawer pay the whole bill, nominal damaged only can be recovered by the holder of the acceptor.(m) The better opinion, howevei-, seems to be, that to an action against the acceptor, payment by the drawer is no plea, but only converts the holder into a trustee for the drawer when the holder afterwards recovers of the acceptor.(m) But payment by the drawer of an accommodation bill is a complete discharge of the bill.(o) The verb ^^ retire" in its application to bills of exchange is an ambiguous word. In its ordinary sense it is used of an indorser who takes up a bill by handing the amount to a transferee, after which the indorser holds the instrument with all his- remedies intact. But it is sometimes used of an acceptor, by whom when a bill is taken up or retired at maturity, it is in- effect paid, and all the remedies on it extinguished, (p) r*9i fil ^Payment by a stranger of the amount of a bill to the ^ bankers, at whose house the bill is made payable by the acceptor, the party paying obtaining possession of Ihe bill, is not a payment by the acceptor. (g')(l) (m) Mais comme ces differents d^biteurs sont d^biteurs envers lui de la mSme chose, le paiement qui lui est fait par I'un d'eui lib^re d'autant envers lui les autres. Poth. 106; see Hemming v. Brook, 1 Oar. & M. 57. («) Jones V. Broadhurst, 9 0. B. 173 (67 B. C. L. R.) j Randall t. Moon, 12 C. B. 261 (74 E. 0. L. R.) ; but see Williams v. James, 19 L. J., Q. B. 445 ; 15 Q. B. 498 (69 E. 0. L R.), s. c; Jewell v. Parr, 13 C. B. 909 (76 E. C. L. R.); 16 C. B. 684 (81 E. C. L. R.) ; Kemp v. Balls, 10 Bxch. 607; Belshaw v. Bush, 11 0. B. 191 (73 E. C. L. R.) ; James v. Isaacs, 12 C. B. 791 (74 E. 0. L. R.). (0) Lazarus v. Cowie, 3 Q. B. 459 (43 E. C. L. R.). Of bills not strictly accom- modation bills. Cook T. Lister, 32 L. J., 0. P. 121. Mr. Justice Willes has expressed an opinion that payment or satisfaction by a stranger is primS, facie good, and that the assent of the debtor will be presumed. That very learned judge refers to the rule of the civil law, " Debitorem ignarum seu etiam invitum solvendo liberare possumus." See the observations of Willes, J., in Oook v. Lister, 32 L. J., C. P. 126, and in Manchester Warehouse Company v. Bertie, C. P., T. T. 1866. {p) Elsam V. Denny, 15 C. B. 87 (80 E. 0. L. R.). (j) Deacon v. Stodhart, 2 Man. & Gr. 317 (40 E. G. L. R.). As to payment by a Stranger, see Jones v. Broadhurst, supra; Simpson v. Egginton, 10 Exch. 845; 24 L. J., Exch. 312, s. ; Kemp v. Balls, 10 Exch. 607. (1) Where the holder of a bill of exchange accepted for the accommodation of the drawer sends it to the bank for collection, and the bank, when the bill comes to OF PAYMENT. 355 If a banker at whose house a bill is made payable happen also to be indorser of the bill, and on the bill being brought to 'him ■when it becomes due he takes it up without observation, it is a question of fact for a jury whether he paid it as agent of the acceptor or merely retired it as indorser.(r) The acceptor of a bill, whether inland or foreign, or the maker of a note, should pay(s) it on a demund made, at any time within business hours, on the day it falls clue. And, if it be not paid on such demand, the holder may instantly treat it as dishonored.(^) But the acceptor has the whole of that day within which to make payment ; and though he should, in the course of that day, refuse payment, which refusal entitles the holder to give notice of dis- honor, yet if he subsequently, on the same day, makes payment, the payment is good, and the notice of dishonor becomes of no avail, (m) A plea of tender,(a;) by the acceptor after the day of payment,, is insuflSQient.(?/) («•) Pollard V. Ogden, 2 E. & B. 459 (75 E. C, L. R.). (j) If a banker who has funds in his hands refuse to pay a check, he thereby subjects himself to an action at the suit of his customer, the drawer. Marzetti v. Williams, 1 B. & Ad. 415 (20 B. 0. L. R.) | 1 Tyr. 77, s. 0. ; Bolin v.Steward, 14 0. B. 595 (78 E. 0. L. R.), ante, 18, note (w) ; Gumming T. Shand, 29 L. J., Exch. 129. Sp, if he refuse to pay a bill of his customer, made payable at the banking-house ; but in order to charge the banker, the presentment must be within banking hours. Whitaker v. The Bank of England, 1 C, M. & R. 744 ; 6 C. & P. 700 (25 E. C. L. R.) ; 1 Gale, 54, s. c. See the Chapter on Presentment for Payment. {t) Ex parte Moline, 1 Rose, 303 ; Burbidge v. Manners, 3 Camp. 193 ; Leftley v. Mills, 4 T. R. 170 ; Haynes v. Birks, 3 B. & P. 599 ^ (u) Hartley t. Case, 1 C. & P. 555 (12 B. 0. L. R.) ; 4 B. & 0. 339 (10 E. C. L. R.) ; 6 D. & R. 505, s. 0. (x) As to payment where there are nominal damages, see Beaumont y. Greathead, 2 0. B. 494 (52 E. 0. L. R.). (y) Hume v. Peploe, 8 East, 168. But a drawer or indorser is not bound to pay till notice and request ; and, therefore, a plea of tender, after the bill became due, may be good, if pleaded by a drawer and indorser. . And, as a drawer or indorser has a reasonable time to pay, he may, it should seem, plead a tender eVeu after maturity, passes the amount thereof to thecredit of the holder, this is not such a payment as discharges the acceptor; but the bank succeeds to the rights of the holder, and may maiAtain an action on the bill against the acceptor. Pacific Bank T. Mitchell, 9 Metcalf, 297. 356 OF PAYMENT. r*2171 *^^ * ^^^^ °^ °°*® ^® P*'*^ before it is due, and is after- " wards indorsed over, it is a valid security in the hands of a bond fide indorsee. "I agree," says Lord Ellenborough, "that a bill paid at maturity cannot be reissued, and that no action can be afterwards maintained upon it, by a subsequent indorsee. A payment before it becomes due, however, I think, does not extin- guish it any more than if it were merely discounted. A contrary doctrine would add a new clog to the circulation of bills and notes ; for it would be impossible to know whether there had not been an anticipated payment of them. "(2) If an acceptor discounts his own acceptance, he may transfer it, and the indorser will be liable to a subsequent holder, even with notice, (ar) But if the acceptor is the holder when the bill falls due, it is extinguished. (6) If the holder constitutes any one of the parties liable to him his executor, and die, the appointment is equivalent to payment and a release.(c) A {)rematnre release will not, any more than a prema- ture payment, protect the releasee from liability to a subsequent holder without notice. (c?) But the payment of a note payable on demand will be a defence, even against an endorsee for value without notice ;(e) for the statute, which imperatively prohibits the reissuing of such a note, dispenses with notice. A payment after action brought will not prevent the holder from proceeding for his costs. (/) request, and of principal only, without interest. Walker v. Barnes, 5 Taunt; 240 (1 B. C L. R.) ; 1 Marsh, 36, s. c. : Soward v. Palmer, 8 Taunt. 211 (4 E. 0. L. R.) ; 2 Moo. 274 ; but see Siggers v. Lewis, 1 C, M. & R. 370 ; -4 Tjrw. 847 ; 2 Dowl. 681, s. 0. ; where a plea that the action was commenced before a reasonable time had elapsed for the defendant, the indorser, to pay the bill was held ill. (2) Burbridge v. Manners, 3 Camp 193 ; Morley v. Culverwell, 7 M. & W. 174. See Harmer v. Steele, 4 Exch. 1 ; Lazarus v. Cowie, 3 Q B. 459 (43 B. 0. L. R.) ; Jewell V. Parr, 13 0. B. 909 (76 B. C. L. R.) ; Attenborongh v. Mackenzie, 25 L. J., Exch. 244. (o) Attenborongh v. Mackensie, 25 L. J., Exch. 244. (4) Byles on Bills, 4th American edition, 236. (e) Freakley t. Fox, 9 B. &, 0. 130 (17 E. C. L. R.) ; 4 M. & Ry. 18, s. 0. See the law on the point more fully discussed in Chapter v., tit. Mxeaulors. (d) Dod T. Edwards, 2 C. & P. 602 (12 E, ,C. L. R.). (e) Bartrum v. Caddy, 9 Ad. & E. 275 ; 1 Per. & Dav. 207, s. 0. (/) Toms 'T. Powell, 6 Esp. 40 ; 7 East, 536, s. c. OF PAYMENT. 357 If the bill be paid, the payer has alright to insist on its being delivered up to him ; but if it be not paid, the holder *should r*2181 keep it. Yet it has been held, that an agent is justified, by the usage of trade, in delivering it up on receiving a check, though that check is afterwards dishonored.(^) But the drawers or indorsers, in such a case, would be discharged, for they have a right to insist on the production of the bill, and to have it delivered up on payment by them.(^) If the holder of a check receive bank notes instead of cash, and the banker fail, the drawer is dis- charged. (i) A set-off does not amount to payment, unless it be mutually agreed that one demand shall be set off against the other. Such an agreement amounts to payment.(A;) And an agreement, even by one of several partners, with a- debtor to the firm, that a sepa- rate debt due from the partner, shall be set off against a joint debt due the firm, binds the firm.(Z) Credit given to the holder of a bill by the party ultimately liable, is tantamount to payment,(m) Where a hanker takes from a customer and his surety apromissory note, intended to secure a running balance, and makes advances on the faith of the note, it is' not discharged by subsequent unap- propriated repayments made by the customer to the banker, but still continues as a security for the existing balance.(w)(l) There are many circumstances under which a legacy by a debtor to his creditor, of equal or greater amount than the debt, will be {g) Eussell v. Hankey, 6 T. R. 12. (A) Powell v. Eoohe, 6 Esp. 76, vide ante./ (j) Vernon v. Bouverie, 2 Show. 296. And see Guardians of the Lichfield Union T. Green, 1 H. & N. 884. (A) Callander v. Howard, 19 L. J., 0. P. 312 ; 10 0. B. 290 (70 E. 0. L. K.), s. o. [1) Wallace v. Kelsall, 7 M. & W. 264; see Gordon v. Ellis, 7 M. & G. 607 ; 2 C. B. 821 (52 E. 0. L. R.),s. 0. (m) Atkins v. Owen, 4 Nev. k Man. 123 ; 2 Ad. & El. 35 (29 B. C. L. R.), s. 0.; Bell V. Buckley, 11 Exch. 631, («) Pease v. Hirst, 10 B. & 0. 122 (21 E. C. L. R.) ; .5 M. & Ry. 88, s. 0. (1) Payment in spurious bills is no discharge. Baker v. Bonesteel, 2 Hilton, 397 ; Ware v. Street, 2 Head. 609 ; Ramsdale v. Horton, 3 Barr, 330. Payment in notes of a broken bank is good. Ware v. Street, 2 Head. 609. Contra, Towusend v. Bank of Racine', 7 Wisconsin, 185; Westfall v. Braley, 10 Ohio (N. S), 158. One who receiyes a counterfeit note in payment from an innocent person, must return it within a reasonable time, after discovery of its character. Raymond v. Baar, 13 Sergeant & Eawie, 318. 358 OF PAYMENT, considered a satisfaction of the debt. But a legacy to the holder of a negotiable bill or note can never be considered as a satisfaction of the debt on that instrument. For a legacy is a satisfaction when it may be presumed to have been the intention of the testator that it should so operate ; but that cannot be presumed, when, from the assignable nature of the debt, the testator could not tell whether or no the legatee was at the time of the bequest his creditor, (o) ^ r*91 41 Where a man is indebted to another in several items, *and makes a partial payment, it often becomes a question, im- portant not only to the parties themselves, but to third persons, to which of the items the payment shall be imputed. The rule of the Roman law, and therefore in general of Conti- nental law is, that a payment shall be appropriated, first, according to the intention of the debtor at the time of making it;(jB) but if that be unknown, then, secondly, at the election of the creditor,(5) signified to the debtor at the time of receiving it.(r) If the intention of neither be known, payment must then be appropriated according to the presumed intention of the debtor, and it will be presumed that he meant to discharge such debts as were most burdensome: as, a debt carrying interest, rather than one which carries none ; a debt secured by a penalty, rather than one resting on a simple stipulation ; a debt, on which he may be made a bankrupt, rather than one which will not subject him to such a liability. If all the debts are equal in degree, the payment must then be imputed to them according to their respective priority in the order of time.(s) Such is the rule of the civil law, from which, in some particulars, the common law differs. (o) Carr v. Bastabrook, 3 Ves. 561. [p) Quotiens quis debitor ex pliiribus causis UQum debitum solvit, est in arbitrio solventis dicere quod potius debitum voluerit solutum, et quod dixerit, id erit aolu- tum. D. 46, 3, 1. Vide etiam Cod. 8, 43, 1. (§') Quotiens rero non dicimus ad quod solutum sit, in arbitrio est accipientis cui potius debito acceptum fuit. D. 46, 3, 1. Cod. 8, 43, 1. (r) Dum in re agenda (in re prassenti hoc est statim atque solutum est) hoc fiat ) ut Tel creditori liberum sit non accipere vel debitori non dare, si alio nomine exso- lutum quis eorum velit ; cseterum postea non permittltur. D. 46, 3, 1, 2, 3. (a) D.' 46, 3. If all the debts were equal and alike in every respect, the sum paid was applied to a rateable reductiou of them all. A rateable appropriation is also sometimes made by the English law. See an example in Favenc v. Bennett, U Bast, 36. See further, post, 220. OF PAYMENT. 359 Wherever, according to the English law, the transactions between the two parties form one general account current, or are treated by them as such, payments are to be imputed to debts in the order of time, and the balance is to be struck at the foot of the account.(^) But, if an unappropriated payment be made on account of several distinct insulated debts, which cannot be considered in the light of a running account between the parties, the common law then dififers from the civil law, and gives the creditor a right of appropriating it any time before action,(M) as he pleases,(a;) *provided a prior appropriation have not been communicated to the debtor. L J An appropriation which would have the effect of paying one man's debt with another man's money, will not be allowed.(y) Nor can there be an appropriation which would deprive a debtor of a benefit, such as the taxation of costs.(3) And it seems that an appropriation by the creditor without the knowledge pr consent of the debtor, will not of itself afford sufficient ground for raising against the debtor a new promise to pay.(a) A payment may be imputed to a demand for which the creditor could not recover at law.(5) But where a payment is made by a debtor on account generally, the court will not refer it to a debt barred by the statute, if it can be attributed to any debt not so barred, (e) The law will ascribe a payment to a legal debt, rather (t) Clayton's case, 1 Meriv. 604. (w) Simsou T. Ingham, 2 B. & 0. 65 (9 E. 0. L. R.) ; 3 D. & Ry. 249 ; Mills T. Powkes, 5 Bing. N. 0. 455 (35 B. C. L. R.) ; 7 Scott; 444, s. o. (z) Clayton's case, 1 Meriv. 604 ; Bodenham T. Purchaa, 2 B. & Aid. 39 ; Stoveld v. Bade, 4 Bing. 12 (13 E. C. L. R.) ; 12 Moo. 370 ; Field T. Carr, 2 Moo. & P. 46 ; 5 Bing. 13 (15 E. 0. L. R) ; Goddard v. Cox, 2 Stra. 1194; Bosanquet t. Wray, 6 Tannt. 597 (1 B. C. L. R.) ; 2 Marsh, 319, s. c. ; Kirby v. Duke of Marlborough, 2 M. & Sel. 18; Plomer v. Long, 1 Stark. 153; Woodroflfe v. Hayne, 1 C. & P. 600 (12 B. 0. L. R.) ; Shaw v. Picton, 4 B. & C. 715 (10 E. C. L. R.) ; 7 Dowl. & R. 201, s. 0. ; Marsh v. Houlditch, Chitty, 9th ed. 404; Hammersleyv. Knowlys, 2 Esp. 666 ; Birch V. Tebbutt, 2 Stark. 74 (3 E. C. L. R.) ; Marryatts v. White, 2 Stark. 101 (3 E. C. £. R.) ; Meggott v. Mills, 1 Ld. Raym. 286 ; Dawe v. Holdsworth, Peake, 64 ; Peters v. Anderson, 5 Taunt. 596 (1 E. C. L. R.) ; Wright v. Laing, 3 B. & C. 165 (10 E. C. L. R.) ; 4 Dowl. & R. 783 ; Goagh v. Davis, 4 Price, 200 ; Strange v. Lee, 3 East, 484; Simpson v. Ingham, 2 B. & C. 65 (9 E. C. L. R.) ; 3 Dowl. & R. 249 ; Mills v. Fowkes, 5 Bing. N. 0. 455 (35 E. O.^L. R.) ; 7 Scott, 444, s. o. (y) Thompson v. Brown, 1 M. & M. 40. (z) James v. Child, 2 Tyrwh. 735 ; 2 C. & J. 252, s. c. (a) Nash v. Hodgson, 6 De G., M. & G. 474 ; 25 L. J., Chan. 186 ; 23 L. J., Chan. 780, s. 0. (6) Orookshauks v. Rose, 1 M. & R. 100 ; 5 C. & P. 19 (24 E. C. L. R.), s. o. (c) Nash V. Hodgson, 6 De G., M. & 6. 474 ; 25 L. J., Chan. 186 ; 23 L. J., Chan. 780, s. 0. 360 OF PAYMENT. than to an illegal one. (d) A party receiving money for the use of another from a third person, which is not properly a payment hut a set-ofF, cannot appropriate the money without the knowledge or consent of him for whom it has been received.(e) It has been held, that a payment may be appropriated to a disputed debt, if it be really a good debt.(/)(l) (d) Wright T. Laing, 3 B. & C. 165 (10 E. C. L. R.) ; 4 Dowl. & E. 783. (e) "Waller v. Lacy, 1 M. & Gr. 54 (39 E. C. L. R.) ; 1 Scott, N. R. 186, s. o. (/) Williams v. Griffith, 6 M. & W. 300. (1) The debtor hag the first right to direct the applicatiou of any payment he may make. Taylor v. Sandiford, 1 Wheatou, 13 ; Reed t. Boardman, 20 Pick. 441 ; Martin v. Draher, 5 Watts, 544 ;■ McDonald T.Pickett, 2 Bailey,'617; MitchelFT. Dull, 4 Gill & Johns. 361 ; Selfridge t. Northamptoii Bank, 8 Watts & Serg. 320 ; Eunyan t. Latham, 5 Iredell, 551 ; Howland v. Rench, 7 Blackford, 236 ; Eaekley ' V. Pearce, 1 Kelly, 241 ; Eandall v. Parramore, 1 Branch, 409 ; U. States v. Brad- bury, Daveis, 146 ; Thayer v. Denton, 4 Michigan, 192 ; Sherwood v. Haight, 26 Conn. 432 ; Semnies v. Boykin, 27 Georgia, 47 ; Proctor v. Marshall, 18 Texas, 63 ; Hargraves v. Cooke, 15 Georgia, 321 ; Gaston v. Barney, 11 Ohio (N. S.), 506. If payment is offered on an account not due, the creditor need not receive it, but if he does receive it, he is bound to apply it in accordance vrith the directions of the debtor. Wetherell v. Joy, 40 Maine, 325. The rule that a debtor may apply pay- ment as he pleases, applies only to voluntary payments, and not to those made by process of law. Blackstone Bank v. Hill, 10 Pick. 129. If no appropriatioii be made by him, it then devolves upon the creditor to make it. Mitchell v. Dull, 2 Har. & Gill, 159; Alexandria v. Patten, 4 Cranch, 316; Brady v. Hill, 1 Missouri, 315; Blinn v. Chester, 6 Day, 166; Brewer v. Enapp, 1 Pick. 332; Blackstone Bank v. Hill, 10 Ibid. 129; Arnold v. Johnson, 1 Scam. 196; Logan v. Mason, 6 Watts & Serg. 9 ; Washington Bank' v. Prescott, 20 Pick. 339 ; Allen v. Kimball, 2.^ •Ibid. 473: Jones v. U, States, 7 Howard, U. S. 681 ; Tan Eensselaer v. Roberts, 5 Denio, 470; Sawyer v. Tappan, 14 N. Hamp. 352; Watt v. Hock, 1 Case^, 411 ; Middletou v. Frame, 21 Missouri, 412 ; Carpenter v; Goin, 19 New Hampshire, 479; Crisler v. M'Coy, 33 Mississigpi, 445 ; Calvert v. Carter, 18 Maryland, 73 ; Solomon v. Dreschler, 4 Minnesota, 275 ; Proctor v. Marshall, 18 Texas, 63 ; Taylor v. Cole- man, 20 Ibid. 772 Yet the creditor must make, it has been held, such an applica- tion as the debtor could not reasonably or justly object to. Ayer v. Hawkins, 19 Vermont, 26; Cowperthwait v. Sheffield; 1 Sandf. S. C. Rep. 416; Parchman v. McKinney, 12 Smedes & Marshall, 631 ; Bancroft v. Dumas, 21 Vermont, 456; Cald- well V. WentwOi-th, 14 N. Hamp. 431. If a creditor hold's two demands, one lawful and the other unlawful, he cannot apply a general payment to the illegal demand, but the debtor himself may thus apply it if he elects to do so. Rohan v. Hanson, 11 Gushing, 44; Stone v. Talbot, 4 Wisconsin, 442. The creditor, when the debtor does not, may apply a payment even to a debt barred by the statute. Armi- stead v. Brooke, 18 Arkansas, 521. • He may appropriate to the payment of the first items not barred at the time by the Statute of Limitations. Livermore v. Rand, 6 Foster, 85. It has been held that such application by the law shall be made as the debtor may be presumed to have done — in other words, as would be most for his interest at the time, Hilton v. Burley, 2 New Hamp. 193 ; Dorsey v. Garraway, 2 OF PAYMENT. , 361 There are cases where a payment is appropriated by law to several debts proportionally. Har. & Johns. 402 ; Dedham Bank v. Chickering, 4 Pick. 314 ; U. States v. Brad- bury, Daveis, 146. 0. J'. Gibson has controverted this doctrine with great force and ability, in Logan T. Mason, 6 Watts & Sergeant, 9. The principles which regulate and control the appropriations of payments made on a running account, in the absence of directions from the debtor, look to the interest of the creditor. John- son's Appeal, 1 Wright, 268 ; Pierce v. Sweet, 9 Casey, 15]. When a debtor makes payments without specifying the application, the creditor cannot apply them to debts not due if' there are other debts which are due. Bacon v. Brown, 1 Bibb, 334; McDowell v. Canal Co., 5 Mason, H ; Seymour v. Sexton, 10 Watts, 255. A debtor or creditor cannot appropriate a payment in such manner as to affect the relative liabilities or rights of sureties without their consent. Postmaster-General v. Nor- vell, Gilpin, 106 ; Bftnk v. Brown, 12 N. Hamp. 320 ; Myers v. U. States, 1 M'Lean, 493. The holder of two notes of the same maker, repeiving from him in part pay- ment a sum smaller than either, can, in the absence of any appropriation by him, apply the whole sum upon either, but not half on each note, without the debtor's approbation. Wheeler v. House, 1 Williams, T35. The holder of several notes of the same maker has a right to impute a partial payment made on them to part of the notes, and is not bound to make the imputation to all^ro rata. Blackman v. Leonard, 15 Louisiana Annual, 59. If application be directed by neither, then the law will make the application according to equity. Postmaster-General v. Norvell, Gilpin, 106 ; Barker v. Conrad, 12 Serg. & Rawle, 301 ; U. States v. Kirkpatrick, 9 Wheaton, Y20 ; Cremer v. Hig- ginson, 1 Mason, 323 ; Gwinn v. Whitaker, 1 Har. & Johns. 754 ; Briggs v. Williams, -2 Vermont, 283 ; Robinson v. Doolittle, 12 Vermont, 256; Randall v. Parramore, 1 Branch, 409 ; Bayley v. Wynboop, 5 Gilman, 449. To the debt which is prior in date. Allston v. Coutee, 4 Har. & Johns. 351 ; U. States v. Kirkpatrick, 9 Wheat. 720; Fairchild v. Holly, 10 Conn. 175; Postmaster-General v. Furber, 4 Mason, 332 ; McKenzie v. Nevius, 9 Shep. 138 ; Berghaus v. Alter, 9 Watts, 386 ; Boody v. TJ. States, 1 Woodbury & Minot, 150; Upham v. Lefavour, 11 Metcalfe, 174; U. States V. Bradbury, Daveis, 146 ; Caldwell v. Wentworth, 14 N. Hamp. 431 ; Pierce V. Sweet, 9 Casey, 151 ; Miller v. Leflore, 32 Mississippi, 634; Scott v. Cleveland, 33 Ibid. 445 ; Morgan v. Tarbell, 2 Williams, 498 ; Shedd v. Wilson, 1 Ibid. 478 ; Harrison v. Johnston, 27 Alabama, 445 ; AUcott v. Strong, 9 Gushing, 323 ; McKee V. The Commonwealth, 2 Grant's Cases, 23; although such items accrued- during the infancy of the debtor. Thurlow v. Gilmore, 40 Maine, 378; and though the creditor may hold security for these items and none for the subsequent ones. Gush- ing V. Wyman, 44 Maine, 121. Contra, Moss v. Adams, 4 Iredell Eq. 42 ; Jones v. Kilgore, 2 Richardson (Equity), 63 ; Bairn v. Williams, 10 Smedes & Marshall, 113. If a payment is made generally to a party who holds a debt due to himself, and another due to himself and the plaintiff, he is bound as between himself and the plaintiff to apply the payment rateably upon the two debts. Colby v. Copp, 35 New Hampshire, 434. Where money is placed in the hands of an agent to pay two notes pursuant to agreement, and this fact is known to the holder, he has no right to appropriate it to the payment of one of them, at his own option. Jones v. Perkins, 29 Mississippi, 139. To make an application of a payment the person paying must give directions before or at the time of payment. Reynolds v. M'Farlane, 1 Overton, 362 OF PAYMENT. Thus where a principal debtor has assigned his effects to a trustee for his creditors, a creditor who has a guarantee *for part L J of his debt will be forced, even at law, to apply in dis- charge thereof a rateable part of any payment that he may receive from the trustee. (^) (g) Baidwell v. Lydall, 7 Bing. 489 (20 B. C. L. R.) ; see Eaikes v. Todd, 1 P. & D. 138 ; 8 Ad. & E. 846. (35 B. C. L. R.), s. o. ; Paley t. Field, 12 Vea, jun. 435. See other instances of rateable appropriation in Faveno v. Bennett, 11 Bast, 36; and Ferris v. Roberts, 1 Vernon, 34 ; 2 Chan. Ca. 83, s. c. The following rules as to appropriation of payment have been established, in America : — The debtor has the first right to direct the application of any payment he may make. The rule that a debtor may apply payment as he pleases, applies only to volun- tary payments, and not to those made by process of law. If no appropriation be made by him, it then deTolves upon the creditor to make it. Yet the creditor must make such an application as the debtor could not reason- ably or justly object to. A debtor or creditor cannot appropriate a payment in such manner as to affect the relative liability or rights of sureties withoTit tl^eir consent. When a debtor makes payments without specifying the application, the creditor cannot apply them to debts not due if there are other debts which are due. If application be directed by neither, then the law will make the application according to equity. It has been held that such application by the law shall be made as the debtor may be presumed to have done — in other words, as would be most for his interest at the time. The law will make the application first to interest, and then to principal. To the debt which is prior in date. I 488 ; Moss T. Adams, 4 Ired. Bq. 42. If the debtor makes no appropriation at the time of payment, the creditor may appropriate -at any time before suit. Haynes T. Wait, 14 California, 446. The rules in regard to the application of payments only apply where the debts are equally good in law. Greene v. Tyler, 3 Wright, 361 ; Gill T. Rice, 13 Wisconsin, 549 ; Smith v. Coopers, 9 Iowa, 376 ; Solomon v. Dreschler, 4 Minnesota, 278. Where a partial payment is made on a debt, the law will make the application first to interest and then to principal. Gwinn v. Whitaker, 1 Har. & Johhs. 754 ; Frazier v. Hyland, Ibid. 98 ; Prebles v. Gee, 1 Dev. 341 ; Spires v. Hamot, 8 Watts & Serg. 17 I De Bruhl v. NeutFer, 1 Strobhart, 426 ; Bond v. Jones, 8 Smedes & Mar- shall, 368 J Righter v., Stall, 3 Sand, Oh. Rep. 608 ; Jencks v. Alexander, 11 Paige, 619; Hart V. Dorman, 2 Florida, 445; Stewart v. Stebbins, 30 Mississippi, 66; McFadden v. Fortier, 20 Illinois, 509 ; Johnson v. Johnson, 5 Jones (Bquity), 167; Hampton v. Dean, 4 Texas, 451 ; Hearn v. Culbirth, 10 Ibid. 216. The law will apply a payment to the principal, and not to the discbarge of usurious interest. Stanley v, Westrop, 16 Texas, 200. When it is proved that a payment was made in a certain year, but the day and month cannot be shown, the Court will direct the credit to be given as of the last day of the year, a day most favorable to the creditor. Byers v. Fowler, 14 Arkansas, 86. OF PAYMENT. 363 Part payment of the dBbt by the party liable is no discharge of the whole debt,(A) but part payment by a stranger may be.(i)(l) And it has been held, that where a promissory note is due and unpaid, so that not only the principal, but interest (at least to a nominal amount) is due also, the principal may be taken in satis- faction of the debt and damages. (A:) As the lapse of twenty years(?) is sufficient to raise a presump- tion that a bond has been paid, so it has been held to be a good defence to an action on a promissory note payable on demand.(jw) But if during this period the plaintiflF was an alien enemy, and payment to him would *consequently have been illegal, p^^opo-i such a presumption would not, it seems, arise, (w) The production of a check drawn by the defendant on his banker, and indorsed by the plaintiif, is evidence of payment ;(o) but not if there have been several transactions between the parties, without evidence to connect the delivery of the check with the payment in question. (p) A bill or note once in circulation overdue, and coming out of the hands of the acceptor or maker, is presumed to be paid. Thus, it is a maxim of the Scotch law, cMrogvaphum apud dehitorem repertum presumitur solutum. But the mere pro- duction of a bill from the custody of the acceptor is not primd faeie evidence of his having paid it without proof of its having been once in circulation after it had been accepted. (g')(2) To that debt which is least secured. To make an application of a payment the person paying must give directions before, or at the time of payment. See the authorities in Byles on Bills, 4th American edition. (A) Fitch V. Sutton, 5 East, 230. When a bill or note may be satisfaction. See post, Chapter xvi. (s) Welby v. Drake, 1 C. & P. 557 (12 E. C. L. R.). [k) Beaumont v. Greathead, 3 D. & L. 631 : 2 0. B. 494 (52 E. 0. L. E.), s. 0. (l) See now 3 & 4 Will. 4, c. 42, s. 3. (m) Duflaeld v. Creed, 5 Bsp. 52. (n) Du Belloix v. Lord Waterpark, 1 D. & R. 16. (0) Egg V. Barnett, 3 Esp. 196. {p) Aubert v. Walsh, 4 Taunt. 293. (?) Pfiel V. Vanbatenberg, 2 Camp. 439. In America it is held that if a bill be sent to the drawee and he be directed to (1) A part payment of what a person is bound in law to pay, forms no con£|ider- ation for postponing the residue ; neither can the Terbal promise of the plaintiff to postpone the payment of the balance be enforced. Price v. Cannon, 3 Missouri, 453; Wheeler v. Wheeler, 11 Vermont, 60. (2) If a bill be sent to the drawee, and he be directed to pass it to the credit of 364 OF PAYMENT. The party paying a bill or note has a right to insist on its being delivered up to hiin.(»*) But, where the bill or note is not nego- tiable, he cannot refuse to pay it till it is delivered up.(«) It was formerly held,(*) that a party paying a debt could not in general demand a receipt for the money, and therefore that a tender, on condition of having a receipt, was insufficient.(M) It has since, however, been enacted, by 43 Geo. 3, c. 126, s. 5, that a person to whom money has been paid is bound to give a receipt, and that if he refuse to fill up a blank stamp paper presented to r*22^1 ^™ ^°^ *^** *purpose, and to pay the stamp, he becomes liable to a penalty of 10l.{x) It is usual to write a receipt on the back of bills, and it has been said that it is the duty of bankers to make some memorandum on bills or notes which have been paid.(^) A receipt on a, bill or note, duly stamped, does not require an additional stamp, (s) And a receipt on a distinct piece of unstamped paper, though it cannot be looked at as evidence of pass it to the credit of the holder, and do so credit it, the bill is funcim officio, and cannot be farther negotiated. Where a promissory note that has been negotiated comes into the possession of one of the parties liable to pay it, such possession is primS, facie evidence of pay- ment by him, and he is to be treated as the bon& fide holder unless the contrary is made to appear. The possession of a bill by the drawee after maturity is primA facie evidence of payment. See Byles on Bills, 3d American edition, 279. (r) Hansard v. Robinson, 7 B. & C. 90 (14 B. C. L. R.) ; 9 Dowl. & R. 860 ; Powell V. Roach, 6 Esp. 1& ; Alexander v. Strong, 9 M. & W. 733 ; Comes v. Taylor, 10 Exch. 441. {«) Wain V. Bailey, 10 A. & E. 616 (36 E. O.L. R.) ; '2 P. & D. 50Y, S. 0. {t) According to the older authorities, the obligor of a single bond is not bound to pay without an acquittance under seal ; otherwise of a bond with condition. Bro. Ab. tit. Faits, PI. 8 ; 1 Vin. Ab. 192 ; Fortese. 145. («) Green v. Croft, 2 H. Bl. 30 ; Cole v. Blake, Peake, N. P. C. 179. {x) See 5 & 6 Y'Ct. c. 82, same duty for Ireland. (y) Per Lord Ellenborough, Burbidge v. Manners, 3 Camp. 195. (a) 55 Geo. 4, c. 184, Sched. Receipts. A receipt may be explained. , Graves v. Key, 3 B. & Ad. 313 (22 B. 0. L. R.). the holder, and do so credit it, the bill is functus officio, and cannot be further nego- tiated. Savage v. Merle, 5 Pick. 85. Where a promissory note that has been nego- tiated comes into the possession of one of the parties liable to pay it, such possession is primd, fade evidence of payment by him, and he is to be treated as the bon& fide holder, unless the contrary is made to appear. McGee v. Prouty, 9 Metcalf, 547. The possession of a bill by the drawee after maturity is primS, fade evidence of payment. Hill v. Gayle, 1 Alabama, 275 ; Fellows v. Kress, 5 Blackford, 536. OF PAYMENT. 365 the payment, may be shown to a witness who has signed it to refresh his memory, and enable him to speak to the fact of pay- ment.(a) A receipt on the back of a bill imports, primd facie, that it has been paid by the acceptor.(6) ' A tender of part of the amount of an entire sum due on a bill or note seems not to be good pro tanto,(c) even though the residue be met by a set-off. (c?) A defendant, where there is a plea of payment (but not other- wise), is allowed to reduce the damages by the amount of payment established, though he be unable to prove the plea.(e) But if he plead that a note was given for a part only of the apparent con- sideration, and allege payment of that part, and on issue joined the plea is found against him, the plaintiff is entitled to a verdict for the full amount of the note.(/) If the drawee discover, after payment, that the bill or check is a forgery, he may in general, by giving notice on the same day, recover back the rsiouej.{g) And if he have *paid the r*o94.-i bill with the understanding that he was to receive it back, and do not, he may bring an action to retract the payment.(«) And an indorser may sue on a bill which he has been induced by fraud to pay on behalf of the party liable. (i) Money paid under a mistake of fact, or even in forgetfulness, (a) Maugham t. Hubbard. 8 B. & 0. 14 (15 E. C. L. R.) ; 2 Man. & E. 5. Letters by tile General Post, acknowledging the safe arrival of any bills of exchange, pro- missory notes, or any other securities for money, were formerly exempted from stamp duty by the 55 Geo. 3, u. 184, but now repealed by 17 & 18 Vict. c. 83, s. 13. (6) Pfiel V. Vanbatenberg, 2 Camp. 439 ; Scholey t. Walsby, Peake, ,25 ; Graves V. Key, supra. (c) Cotton T. Godwin, 7 M. & W. 147; Hesketh v. Fawcitt, 11 M. & W. 356; Dixon T. Clark, 5 C. B. 935 (57 E. C. L. R.) ; Searles v. Sadgrove, 5 E. & B. 639 (85 E. 0. L. R.). (d) Searles v. Sadgrove, supra. (e) It is said to have been doubted, whether, in an action on a bill or note, a plea of part payment be good eren^ro tanto. Lord v. Ferrand, 13 L. J., Bxeh. 111. Bed gu(ere. (/) Robins t. Lord Maidstone, 4 Q. B. 811 (45 E. C. L. R.). {g) See the Chapter on Forged Bills. (A) Alexander v. Strong, 9 M. & W. 733. See also the Chapter on Pleading. \i) Bell V. Buckley, 11 Bxch. 631. 366 OF SATISFACTION, EXTINGUISHMENT, may be recovered back. (A;) But money laid down on the counter by a banker's cashier in payment of a check cannot be recovered back by action, though it were handed over under a misapprehen- sion of the state of the drawee's account, still less can it be taken back by force from the party receiving it.(Z) A banker's counter is in the nature of a neutral table, provided for the use of both banker and customer. As soon as the money is laid down by the banker upon the counter, to be taken up by the receiver, the pay- ment is complete, (m) [*225] *CHAPTER XVI. OF SATISFACTION, EXTINGUISHMENT, AND SUSPENSION. SATISFACTION 225 NOT NECESSARY BEFORE BREACH . 225 ITS REQUISITES . . . . . 226 PAYMENT OF A SMALLER SUM BY THIRD PARTY 226 ENGAGEMENT BY THIRD PARTY . . 227 RELINQUISHING A SUIT . . . 227 WHEN A BILL OPERATES AS SATISFAC- TION . ' 227 EXTINGUISHMENT .... 228 EFFECT OF WARRANT OF ATTORNEY . 228 OF TRANSFER TO AN ACCEPTOR . . 228 OF JUDGMENT . . . . .228 OF EXECUTION 228 OF DISCHARGE PROM EXECUTION . 228 OF WAIVING A FIERI FACIAS . . 229 OP TAKING A DEED .... 229 SUSPENSION 229 EFFECT OP RENEWAL . . , 229 OF DEBTOR BECOMING ADMINISTRATOR 230 OP COVENANT NOT TO SUB WITHIN A LIMITED TIME .... 230 The nature and effect of payment, in the ordinary sense of that word, has already been considered in the Chapter on Payment. The nature and effect of such dealings with the acceptor or other principal debtor as discharge the drawer or indorser, is a subject of so much importance, that it will form the subject of a separate Chapter on Suretyship. In the present Chapter, the reader's at- tention is requested to such observations on satisfaction, exting- uishment, and suspension, as do not properly fall within either of those two divisions. {h) Kelly v. Solari, 9 M. & W. 64. \l) Chambers v. Miller, 32 L. J., 0. P. 30. (m) Ibid. AND SUSPENSION. 367 A simple contract may be discharged before breach without a release and without satisfaction.(a)(l) But after breach, unless (a) Langdea v. Stokes, Cro. Car. 383 ; Com. Dig. Action on the Case in Assump- sit, G., Conier and Holland's case, 2 Leo. 214 ; King t. Gillett, 7 M. & W. 55 j Dob- son T. Espie, 26 L. J., Exch. 240 ; 2H. k N. 79, s. o. / J (1) This position is perhaps too broad. There are, it appears to me, two qualifi- cations of it. First. The contract must be mntually executory, that is, the con- sideration executory on both sides. If the consideration on either side is executed, then the party cannot be bound by a mere nude agreement to release his right to performance. That right is a perfect one. Before it is thus complete by execution on his side, the contract is still nude as far as he is concerned, at least so far as this, that he cannot legally compel the execution of the stipulations of the other party. Nudi consensus tlUgatio eontrario consensu dissolvitur, is the language of the Roman law. The cases cited as authority for the text are all of this character. Langdon t. Stokes was the case of an agreement to go a certain voyage before a certain day. It was held that it could be dispensed with without consideration or seal. Conier and Holland's ease is a very short and imperfect note ; the nature of the contract is not stated. King r. pillet was the case of mutual promises to marry. The principal other cases cited in Com. Digest is Triswaller v.-Keyne, Cro. Jac. 619. That was an agreement that the plaintiff would travel and help the defendant to search for a will. In all cases of this character it seems a reasonable doctrine, that one party may dispense with the performance by the other without a seal and without consideration. But the second qualification, equally essential, is that this dispensation be accepted, or assented to, expressly or impliedly, by the other party. The original contract resting for its consideration upon mutual pro- mises — mutual agreement to dispense is an equally good consideration for the re- scission. It requires, therefore, neither a release nor satisfaction. It is certainly not in the power of one party to put an end to a contract, nor can one party, relying upon a naked dispensation of his part, insist upon the performance by the other of that of which the acts waived formed the sole consideration. In all the cases cited to sustain the text, the waiver before breach was held to put an end to the entire contract; to amount to a rescission of it. It is plain, then, that this doctrine can and ought to have no application to the contract arising upon a bill of exchange or promissory note. As betweeen the original parties, if there is no consideration, it is still a nude pact, and there can be no recovery. If there is a consideration, or if the instrument is in the hands of a bond fide holder for value without notice when it is in all respects as if there was a consideration, to hold that the vested and absolute right of the holder to performance at maturity could be waived with- out release or satisfaction, would be in the teeth of the best settled authorities and a legion of decided cases. If the other party paid back the consideration, then the contract might be rescinded, but that would be satisfaction. The contract by bill of exchange and promissory note, creates a deiilum in presenti solvendum infutuTo. On this subject, see Buggies v. Patten, 8 Mass. 480 ; Crawford v. Millspaugh, 13 Johns. 87 ; Champlin v. Butler, 18 Ibid. 1*, and the note by the American edi- tors to the case of Foster v. Dawber, 6 Welsby, Hurlstone & Gordon (Exchequer) •Reports, 838. OP SATISFACTION, EXTINGUISHMENT, there be a release, there must be satisfaction. (6)' Accord without satisfaction is no pleai and no action lies on an accord. (e)(1) r*99fin *-^ satisfaction must be beneficial to the plaintiff.(d) It has been considered that it must come from the defend- ant or at least from some one who represents him,(6) but at this day probably satisfaction by a stranger would be held good.(/) ^ t Payment by the debtor himself of a sum smaller than the debt is no satisfaction. (^) But payment of a smaller sum by a third (6) As to the waiver of an acceptance or indorsement, see the Chapter on Accep- tance. (c) Allen V. Harris, 1 Ld. Raym. 122; Lynn v, Bruce, 2 H. Bl. 11'?. Unless another person is party to it., Henderson v. Stobart, 5 Exch. 99. (d) Cumber r. Wane, 1 Stra. 426 ; Heathcote v. Crookshanks, 2 T. R. 24. • (e) Grymes v. BJofield, Oro. Bliz. 641 ; James v. Isaacs, 12 C. B. 791 (74 E. 0. L. R.) ; Kemp v. Balls, 10 Exch. 607 ; Edgecombe v. Eodd, 5 East, 294. The effect of satisfaction by a stranger was fully discussed in Jories v. Broadhurst, 9 C. B. 173 (67 B. C. L. R.) ; and see a very learned judgment delivered by Mr. Justice Maule in Belshaw v. Bush, 11 C. B. 207 (73 E. C. L. R.), to the effect that satisfaction by a stranger is good. See also Chapter xv. It must be fully executed. James v. . David, 5 T. R. 141 ; Bac. Ab. 3 ; Walker v. Seaborne, 1 Taunt. 526. Mutual prom- ises, with an immediate remedy on them have, however, been considered a good ac- cord and satisfaction. See Com. Dig. Accord, B. 4 ; Cartwright v. Cooke, 3 B. & Ad. 701 (23 E. C. L. R.) ; Good v. Cheesman, 2 B. & Ad. 328 (22 B. C. L. E.) ; but see Bayley v. Homan, 3 Bing. N. C,. 915 (32 E. 0. L. R.) ; 5 Scott, 94, s. 0. Is not the distinction this ? If the mere agreement were intended to be the satisfaction, it need not be executed ; if its performance were intended as the satisfaction, it must be executed. See Reeves v. Hearn, 1 M. & W. 323 ; Sard v. Rhodes, 1 M. & W. 153 j Lewis V. Lyster, 2 C, M. & R. 707. In the Roman law, a stipulation by which a former obligation was taken away by the substitution of a new one was familiar. It was called Novatio. It exists at this day in the French Law. (Code Civil, 1271.) Novation might be either without a change of persons sine delegaiione, or with a change of persons cum delegatione. There might be a change of the debtor's person expTomissio, or of the creditor's ceasio. (/) Belshaw v. Bush, ubi supra. {g) Fitch V. Sutton, 5 Bast, 230 ; unless the demand be unliquidated. Wilkinson V. Byers, 1 Ad. & El. 106 (28 E. C. L. R.) ; 3 N. & M. 853, s. 0. ; Watters v. Smith, (1) When any thing has been done under an accord by the debtor he may avail himself of it without satisfaction. Christie v. Craige, 8 Harris, 430. This is the extent of the case in the opinion of the Court. " If the creditor consents to accept merchandise in satisfaction of his claim, and the debtor invests the money with which he would otherwise have paid it, in the goods contracted for, and has these goods ready at the time and place agreed upUn, it would be wrong to say that money might be claimed afterwards." Black, C, J. The case however shows no such investment by the debtor, but that it was merchandise on hand at the time of the accord ; so that in effect it was accord without satisfaction. AND SUSPENSION. 369 person has been held to be a discharge of the whole debt. The defendant was drawer of a bill for 181. Ss, lid., and the plaintiff had taken from the defendant's father 91. in satisfaction of the whole debt. The plaintiff, notwithstanding, afterwards sued the defendant for the balance. But Abbott, C. J., said, "If the father did pay the smaller sum in satisfaction of this debt, it is a bar to the plaintiffs now recovering against the son, because, by suing the son, he commits a fraud on the father, whom he induced to ad- vance his money on the faith of such advance being a discharge of his son from further liability. "(A) Payment of a smaller sum may be a satisfaction where that smaller *sum is the result of an r*997n account stated, including cross demands.(4) So, although a contract by the defendant himself to pay a smaller sum can be no satisfaction, unless it be negotiable ;(y) yet a contract by a third person to do so may be. Thus the taking a bill from one of the two partners may operate as a satisfaction of the joint debt; for the sole liability of one person may, in many instances, be more advantageous than his liability jointly with another.(A;) Relinquishing a suit, involving a doubtful point of law, may be a good satisfaction. (Z) So, it should seem, is the relinquishment of a claim involving a reasonable doubt, though really unfounded and without suit.(m) The acceptance of a negotiable security from the debtor alone, may be a satisfaction even of a debt of larger amount. (w) Where a bill or note, on which some person other than the debtor is liable, is expressly given and aceepted,{o) infull satisfaction and 2 B. & Ad. 889 (22 E. C. L. R.) ; Beaumont v. Greathead, 2 C. B. 494 (53 E. C. L. R.) ; Cooper t. Parker, 24 L. J., 0. P. 68 ; 15 0. B. 822 (80 B. 0. L. R ), s. 0. (A) Welby v. Drake, 1 Car. & Payne, 557 (12 E. C. L. R.) ; Cooper v. Parker, 15 0. B. 822 (86E. 0. L.R.). , (i) Smith T. Page, 15 M. & W. 683 ; Perry v. Atwood, 25 h. J., Q. B. 408 ; 6 B. & B. 691 (88 E. C. L. R.), s. 0. (y) Sibree v. Tripp, 15 M. & W. 23. (*) Thompson v. Percival, 5 B. & Ad. 925 (27 E. C. L. R.) ; 3 N. & M. 667, s. c. ; Henderson v. Stobart, 5 Exch. 99 | and see Belshaw v. Bush, II 0. B. 191 (73 E. 0. L. R.). {I) Longridge v. D'Orville, 5 B^ & Aid. 117 (7 B. C. L. R.). See Edwards y.. Baugh, 11 M. & W. 641 1 Llewellyn v. Llewellyn, 15 L. J., Q. B. 4. (m) Cook v. Wright, 30 L. J., Q. B. 32],. (») Sibree v. Tri^jp, 15 M. & W. 23. (o) Hardman v. Bellhouse, 9 M. & W. 596. 24 370 OP SATISFACTION, EXTINGUISHMENT, discJia'rge, the liability of the debtor for the original debt will not revive, on the dishonor of the substituted instrument.(j9) But if it be taken generally on account, or in renewal, the original liability of the debtor revives on its dishonor. (§') If, in satisfaction of a note, a second note be given, and in satisfaction of the second note a third, the third note cannot be pleadeil as given in satisfaction of the first.(r)(l) {p) Sard V. Ehodes, 1 M. & W. 153; 1 Tyrw. & Gr. 298; 4 Dowl. 743; 1 Gale, 376, s. 0. {q) See post, Steadman v. Gooch, 1 Esp. 3 ; Kearslake t. Morgan, 5 T. B. 513. [r) David v. Preece, 5 Q. B. 440 (48 E. C. L. R.). (1) A bill of exchange or promissory note either ,of a debtor or any other person,' is not payment of a precedent debt, unless it be so expressly agreed. Tobey v. Barber, 5 Johns. 68 ; McGinn v. Holmes, 2 Watts, 121 ; "Weakly v. Bell, 9 Watts, 280; Johnson V. Weed, 9 Johns. 310; Higgins v. Packard, 2 Hall, 54T; Coxe t. Hunkinson, Coxe, 85 ; Bill v. Porter, 9 Conn. 23 ; Sheehy t. Mandeville, 6 Cranch, 253 ; Ohastain v. Johnson, 2 Bailey, 574 ; Porter v. Talcott, 1 Cowen, 359; Ayres T. Vanlieu, 2 Soutl^ard, 765; Sneed t. Wiester, 2(i. K. Marshall, 277; Davidson v. Bridgeport, 8 Conn. 472 ; Gardner v. Gorham, 1 Dougl. 507 ; Weed v. Snow, 3 McLean, 265 ; Hays v. Stone, 7 Hill, 128 ; Kelsey v. Rosborough, 2 Richardson, 241 ; Steamboat v. Hammond, 9 Missouri, 59 ; Elwood v. Deifendorf, 5 Barb. S. C. 398. In some States, however, the rule established is that such a bill or note is ptimA facie payment, unless the contrary appears. Reed v. Upton, 10 Pick. 522 ; Jones v. Kennedy, 11 Ibid. 125 ; Wood v. Bodwell, 12 Ibid. 268 ; Hutchins v. Olcutt, 4 Ver- mont, 555 ; Trotter v. Crockett, 2 Porter, 401 ; Huse v. Alexander, 2 Metcalf. 157; French v. Price, 24 Pick. 13. , It is a qnestion of fact, however, for the jury to determine in all cases the quo animo with which the security was given and accepted. Hart V. Boiler, 15 Serg. & Rawle, 162 ; BuUen v. McGillcuddy, 2 Dana, 91 ; Gardner V. Gorham, 1 Dougl. 507. A bill of exchange indorsed by the defendant in the suit for the accommodation of the drawer, and subsequently by the plaintiffs for the same purpose, was discounted at the instance of the drawee, and not being paid by him, was taken up by ^e plaintiffs, due notice being given to the defendants as first indorser. Subsequently, in order to reimburse the amount paid by the plaintiffs, a note, drawn by plaintiffs, was indorsed by the defendant, was discounted by a bank, and its proceeds remitted to the plaintiffs, and the amount was credited by their clerk pn their books to the bill, on account of the drawer of it. The note was taken up by the drawer. The act of the clerk was disaffirmed by the plaintiffs on dis- covering the entry in their books : it was held, that the discount of the note to raise money to take up the bill and the receipt by the plaintiffs of the amount of the note, was not an extinguishment of the liability of the defendant as first indorser of the bill of exchange, the note not being paid by him, but taken up by the plaintiffSj ; there being no evidence of an intention on the part of the plaintiffs to receive the note.or its proceeds in satisfaction of the bill. Oliphaht v. Church, 19 Penna. State Rep. 318. Where a party, holding a contingent note, receives, in lieu thereof, a note for a smaller sum, payable absolutely, it is a good accord and satisfaction. Winslow v. Hardin, 3 Dana, 543. If the vendor of goods received from the pur- AND SUSPENSION. 371 The taking of a co-extensive security of a higher nature for a bill or note merges the remedy on the inferior instrument. But it must be strictly co-extensive. Therefore a specialty given by one maker of a joint and several note does not merge the remedy on the note.(s) *A warrant of attorney is not an extinguishment of the r*228n debt, as between the parties. "Till judgment is entered up," says Lord BUenborough, "the warrant of attorney is merely a collateral security, and cannot merge the original debt."(<) A bill indorsed in blank to one of several acceptors, and in his hands when due, cannot be afterwards transferred,(M) so as to confer on the transferee a remedy against any of the acceptors; for there has been that which is an equivalent to the performance of the contract. Judgment recovered on a bill or note is an extinguishment of («) Ansell V. Baker, 15 Q. B. 30 (69 E. C. L. R.). Quosre, as to the effect when the note is joint only. See Bell v. Banks, 3 M. & G. 258, 267 (42 E. C. L. R.); King T. Hoare, 13 M. & W. 494, 496; Sharpe v. Gibbs, Scott, N. R. See ante. Chapter on Acceptance. (t) Norris v. Aylett, 2 Camp. 329 ; Bell v. Banks, 3 M. & G. 258. («) Steele v. Harmer, 15 L. J., Exch. 217 ; 14 M. & W. 831, s. 0. As to this, see the judgment of the Court of Error, 19 L. J., Exch. 37 ; 4 Exch. 1, s. 0. chaser the note of a third person made payable to himself, and not indorsed or guar- anteed by the purchaser, such note will be deemed to have been accepted by the vendor in full payment and satisfaction, unless the contrary be expressly proved, Whitbeck v. Van Nees, 11 Johns. 409. If a promissory note be given for goods sold, the seller cannot recover on the original cause of action without producing the note or accounting for its loss. Hays v. McClurg, 4 Watts, 452. Giving the creditor a bank check is not payment. Dennie v. Hart, 2 Pick. 204 ; People v. Howell, 4 Johns. 296 ; Patton v. Ash, 7 Serg. & Rawle, 116 ; Cromwell v. Lovett, 1 Hall, 56 ; Franklin v. Vanderpoel, Ibid. 78; The People v. Baker, 20 Wendell, 602. In general, payment in counterfeit notes or money is not good. Eagle Bank v. Smith, 5 Conn. 71 ; U. S. Bank v. Bank of Georgia, 10 Wheaton, 333 j Markle v. Hatfield, 2 Johns. 465 ; Thomas v. Todd, 6 Hill, 340 ; Anderson v. Hawkins, 3 Hawks. 568 j Ramsdale v. Horton, 3 Barr, 330. Payment in the bills of an insolvent bank is not a satisfaction of a debt, although, at the time and place of payment, the bills are in full credit and the parties are wholly ignorant of such insolvency, iif^he bank was in fact insolvent. Ontario Bank v. Lightbody, 13 Wendell, 101 ; Wainwright V. Webster, 11 Vermont, 576 ; Thomas v. Todd, 6 Hill, 340 ; Watson v. McLaren, 19 Wend. 557. Contra. Lowrey v. Murrell, 2 Porter, 280 ; Bayard v. Shunk, 1 Watts & Serg. 92; Scruggs v. Gass, 8 Yerger, 175. , S72 OF SATISFACTION, EXTINGUISHMENT, the original debt, as between the plaintiff and the defendant. But it alone, without actual satisfaction, is no extinguishment, as between the plaintiff and other parties not jointly liable with the original defendant, whether those parties be prior or subsequent to the defendant, (a;) Nor is it an extinguishment, as between a party prior to the plaintiff, to whom the plaintiff after the judgment returns the bill, and the defendant.(^) But a judgment recovered against one of seyeral Joint makers or Joint acceptors, though without satisfaction, is a good plea in bar to an action against the others. (s) But a judgment recovered against one Joint and several maker is no plea to an action against his companion, (a) Nor does the issuing of execution against the person or goods of one party to a bill extinguish the plaintiff's remedy against other parties. Nay, even the discharging of one party from execution, under a ca. sa., though it is a satisfaction as to him, and a discharge of those parties to the bill who are his sureties thereon,(6) is no ex- .tinguishment of the liability of other parties.(c) r*92QT *^aiving a fieri facias against the goods of a party does L ^ not discharge any other, party.((?) Taking security of a higher nature, as a deed, though it extinguish the simple contract debt on the bill, as between the parties to the sub- stitution, has no effect on the liability of the other distinct parties to the bill,(e) supposing that it does not give time so as to prejudice the condition of sureties. Indeed, if the specialty were given and (a;) Bayley, 335 ; Claxton v. Swift, 2 Show. 441, 494 ; Lutwyohe, 882 ; Skin. 255, S. 0. V (y) Tarieton t. AUhusen, 2 Ad. & E. 32 (29 E. C. L. R.). («) Ward T. Johnson, 13 Tyng's Amer.Rep. 148 ; King v. Hoare, 15 M. & W. 494. (") Ibid. (6) See Chapter on Indulgence, post. (c) Hayling t. Mulhall, 2 W. Bl. 1235, the marginal note of this case is incorrect, see English t. Darley, 2 Bos. & P. 61 ; 3 Esp. 49, s. u. ; Clark v. Clement, 6 T. R. 525 I Ma^bew t. Crickett, 2 Swanst. 190. See Michael v. Myers, 6 M. & U. 702. {d) Pole v. Ford, 2 Chit. 125. (e) Bayley, 6th ed. 334 ; Ba'j. Ab. Extinguishment; D. ; Ansell v. Baker, 15 Q. B. 20 (69 B. C. L. R.). AND SUSPENSION. SfS accepted as a collateral security only, even the liability on the bill, of the party giving it, remains unafifected.(/) If a bill or note be taken on account of a debt and nothing be said at the time, the legal effect of the transaction is this — that the original debt still remains, but the reinedy for it is suspended till maturity of the instrument in the hands of the creditor.(5') This effect of giving the bill has also been described as a conditional payment.(A) It is an exception, but not a solitary one, to the general rule of law, that a right of action once suspended by act of the parties is gone for ever.(i) The action for the original debt is equally suspended if the bill or note be given by a stranger,(A) or if it be outstanding in the hands of a transferee. Where a bill is renewed, holding the original bill, and taking the substituted one, operates as suspension of the debt till the substi- tuted bill is at maturity. (Z) And although the second bill for the principal sum should be paid, the plaintiff may recover interest due on the original bill at the time when the second was given, by bringing an action on the original bill, unless it appear that the second bill was intended to operate as a renewal, or satisfaction of the whole of *the former bill.(m) If the second bill be discharged by an alteration, an action may be brought on ^ J the first, (w) If, as we have seen, a debtor on a bill takes out administration to his deceased creditor, that is a suspension of the right of ac- tion. (o) (/) Bedford v. Deakin, 2 B. & Aid. 210 ; 2 Stark. 178 (3 E. C. L. B.), s. 0. (g) Kearslake v. Morgan, 5 T. R. 513 ; 2 Wms. Saund. 103 b, u. c. ; Steadman v. Gooch, 1 Esp. 3. (h) Belshaw v. Bush, 11 C. B. 205 (73 B. C. L. R.). (i) Belshaw t. Bush, 11 C. B. 201 (73 E. 0. L. R.). See ante. Ford v. Beech, Parke, B., delivering the judgment of the Court of Error, 11 Q. B. 867 (63 E. C. L. B.). (A) Ibid. (l) Kendrick v. Lomax, 2 C. & J. 405 ; 2 Tyr. 438, s. 0. See Ex parte Barclay, 7 Ves. 597 ; Bishop v. Rowe, 3 M. & Sel. 362 ; Dillon T. Rimraer, 1 Ring. 1,00 (8 E. C. L. R ) ; 7 Moore, 427, s. o. (m) Lumley v. Vlusgrave, 4 Bing. N. C. 9 (33 E. C. L. R.) : 5 Scott, 230, s. o. ; Lumley v. Hudson, 4 Bing. N. C. 15 (33 E. C. L. R.) ; 5 Scott, 238, s. o. (n) Sloman v. Oox, 1 0., M. & R. 471 ; 5 Tyrw. 174, s. o. (o) Ante, p. 52. See Lowe v. Peskett, 16 C. B. 500 (81 E. C. L. R.). 374 OF RELEASE. A covenant not to sue for a limited time will not suspend the right of action,(p) but will only create a right to sue for the breach of covenant. No more will a subsequent, or even a contempora- neous, but collateral, agreement on good consideration not to sue for a limited time on a bill or note.(9') [*231] *CHAPTER XVII. OF RELEASE. WHAT IT IS RELEASE AT HATUBITT PKBMATmiE RELEASE . 231 . 231 . 231 BY A PARTY WHO IS NOT THE HOLDER . 231 TO DRAWEE BEFORE ACCEPTANCE . 232 BY OB TO ONE OF SETBBAL JOINTLY EN- TITLED OB LIABLE .... 232 RESTRAINED BY A RECITAL . . 232 COVENANT NOT TO SUE . . . 332 COVENANT NOT TO SUE FOB A LIMITED TIME 232 APPOINTMENT OP DEBTOR EXECUTOR . 233 EIGHT TO HOLD SECURITIES FOR RE- LEASED DEBT . . . .233 An express release, relaxatio, is an acquittance under the seal of the releasor. Being a deed, no consideration is essential to its validity, (a) A release by the holder after the maturity of the bill, is a com- plete discharge as between the releasor and his transferees on the one hand, and the releasee on the other. Its effect on other par- ties will be considered when we come to the subject of principal and surety. But a premature release, i. e., a release before the bill is due, though good as between the parties, will not' discharge the releasee from the claim of an indorsee for value, who took the bill before it was due, without notice of the release. (J) (^) Thimbleby v. Barron, 3 M. & W. 210. (g) Ford v. Beech, 11 Q. B. 842 (63 E. 0. L. E.), in error; Webb v. Spicer, 19 L. J., Q. B. 35 ; 13 Q. B. 894 (66 B. 0. L. R.), s. c, in error; Moss v. Hall, 5 Exch. 50 ; per Parke, B., Salmon v. Webb, 3 H. L. Cas. 510 ; Flight v. Gray, 3 0. B., N. S. 320 (91 B. 0. L. E.). (a) As to the discharge of contract before breach, see the preceding Chapter. (6) Dod V. Edwards, 2 C. & P. 602 (12 E. 0. L. R.). OF RELEASE. 375 And a release, whether before or after the maturity of the bill, is good as between the parties, although the releasor be not at the time of the release the holder of the bill.(c) *But a release of a drawee before acceptance is inopera- tive.(d) t 232] A release bi/ one of several joint creditors is a release by all. And a release to one of several joint contractors is in law a release of all.(e) Therefore a release of one of two joint acceptors or joint indorsers, is a release to both. A release of one of several joint debtors, whp are severally, as well as jointly, liable, is-equally a release to all, for judgment and execution against one would have been a discharge to al].(/) But it has been held, that a release to parties jointly liable, may in some cases be restrained by the terms of the instrument,(^) and may be construed as a covenant not to sue where such a construc- tion is necessary to carry out the paramount intention of the deed.(A) But it cannot be defeated by a mere parol agreement.(i) Indeed, the most general and sweeping words of release may be qualified and restrained by the recital.(y) A covenant not to sue amounts in law to a release. But though (c) Scott T. Lifford, 1 Camp. 246 ; 9 East, 347, s. o. If an acceptor plead a re- lease, it must appear bj- his plea that the bill had been accepted before the release was given. Ashton t. Freestun, 2 M. & G. 1 (39 B. 0. L. R.) ; 2 Scott, N. R. 273, s. o. (d) Drage v. Netter, 1 Ld. Raym. 65 ; Hartley v. Manton, 5 Q. B. 247 (48 E. 0. L . R.) ; and see Ashton v. Freestun, ante, n. (c), p. 231. (c) Co. Litt. 232, a; Nicholson t. Revill, 4 Ad. & Ell. 675 (31 E. C. L. R.) ; 6 N. & M. 192 ; I Har. & W. 753, s. c. So a release of one of several joint trespassers is a release of all; Lit. s. 376. (/) Nicholson y. Revill, 4 Ad. & E. 675 (31 B. C. L. R ) ; 6 N. & M. 192 ; 1 Har. & W. 753, s. 0. ; Evans v. Themridge, 2 K. & J. 174; 25 L, J., Oh. 102, s. 0. (g) Brooks v. Stuart, 1 Per. & D. 615; 9 Ad. & B. 854 (36 E C. L. R.), s. 0. ; Cocks V. NasS, 9 Bing. 341 (23 E. 0. L. R.) ;' Price v. Barker, 4 E. & B. 460 (82 E. C. L. R.) ; Henderson v. Stobart, 5 Exch. 99. (AJ Solly V. Forbes,.2 B. & B. 38 (6 E. C. L, R.) ; Willis v. De Castro, 27 L. J., 0. P. 243 ; 4 0. B., N.,S. 216 (93 B. C. L. R.), s. c. (!) 2 Rol. Ab. 412; Lacy v. Kynaston, 2 Salk. 575; 2 Saund. 47, t; Cheetham v. Ward, 1 B. & P. 630 ; Nicholson v. Revill, ubi supra, n. (e) ; Brooks v. Stuart, 9 Ad. & B. 854 (36 B. C. L. R.) ; 1 Per. & D. 615, s. 0. (J) Payler v. Homersham, 4 M. & S. 423; Simons v. Johnson, 3 B. & Ad. 175 (23 B. C. L. R.). 376 OF THE LAW OF PRINCIPAL AND SURETY it may be pleaded as a release by the party to whom it is given, it does not so far operate as to discharge another person jointly liable. (A) Nor will a covenant not to sue, given by one of two joint creditors, operate as a release.(Z) A covenant not to sue for a limited time, though (as we shall hereafter see) it discharges sureties, does not, as *betuE. C. L. R.), s. c. But the following have been held to be aufficient notices of dishonor ; — " Sir, a bill drawn by you upon and accepted by Mr. Joshua Watson for 312. 3s., due yesterday, is dishonored and unpaid: and I am desired to give you notice OF NOTICE OF DISHONOR. 415 the *House of Lords, and it is to be borne in mind that r*of5Q-| so far as those expressions go beyond what was necessary thereof to request that the same may be immediately paid. I Am, &c., S. D. Rush- bury." Woodthorpe v. Lawes, 2 M. & W. 109. " Sir, the bill for £, , drawn by you, is this day returned with eharges, to which your immediate attention is requested." (Signed by indorsee.) Grugeon v. Smith, 6 Ad. & BU. 499 (33 B. 0. L. E.) ; 2 Nev. & P. 303, s. 0. " Sir, I am desired by Mr. Hedger to give you notice th%t a promissory note for 992. lis., payable to your order two months after the date thereof, became due yes- terday, and ha8 been returned unpaid, and I have to request you will please remit the amount thereof, with Is. 6d. noting, free of postage, by return of post. I am, &c., Jones Spyer." Hedger v. Stevenson, 2 M. & W. 799 ; 5 Dowl. Ill, a. c " Your bill is unpaid, noting 5s.'' Armstrong v. Ohristiani, 5 0. B, 687 (57 E. C. L. R.). " Your note has been returned dishonored," is sufScient, without the words " your note has been presented for payment." Bdmonds v. Gates, 2 Jurist, 183. " Messrs. Houlditch are surprised that Mr. Cauty has not taken up Chaplin's bill according to his promise; are also surprised to hear that Mrs. Gib's bill was re- turned to the holder unpaid." This notice was followed by a visit from the indorser to the holder on the same day, in which he promised to write to the other parties, by whom, or by himself, the bill should be paid. Houlditch v. Cauty, 4 Bing., N. C. 411 (33 B. C. L. R.); 3 Scott, 209, s. c. " Mr. Gompertz, — Sir, The bill of exchange for 250Z., drawn by S. Rendall, and accepted by Charles Stretton, and bearing your indorsement, has been presented for payment to the acceptor thereof, and returned dishonored, and now lies overdue and unpaid with me, as above, of which I hereby give you notice. I am, &c., C. Lewis." Lewis V. Gompertz, 6 M. & W. 400. "I beg to inform you that Mr. D.'s acceptance for 2002., drawn and indorsed by you, due 31st July, has been presented for payment and returned, and now remains unpaid." Cooke v. French, 10 Ad. & Ell. 131 (37 E, C. L. E.) ; 3 Per. & D. 596, S. 0. "Dear Sir. To my surprise I have received an intimation from the Birmingham and Midland Counties Bank that your draft on A. B. is dishonored, and I have re- quested them to proceed on the same." Sheltou v. Braithwaite, 7 M. & W. 436. " Sir, I am instructed by Mr. Molineauz to give you notice that a bill (describing it) has been dishonored," &o. Stocken v. Collin, 9 C. & P. 653 (38 E. C. L. E.) ; 7 M. & W. 5-15, s. 0. A party sent by the holder of a dishonored bill of exchange, called at the draw- er's house the day after it became due, and there saw his wife, and told her that he had brought back the bill that had been dishonored. She said that she knew noth- ing about it, but would tell her husband of it when he came home. The party then went away, not leaving any written notice : held sufficient notice of dishonor. Hou- sego V. Cowue, 2 M. & W. 348. " James Court's acceptance due this day is unpaid, and / request your immediate attention to it," was held sufficient. Bailey v. Porter, 14 M. & W. 44. See the ob- servations on this case in Allen v. Edmundson, 17 L. J., Exch. 293; 2 Exch. 719, S. 0.; and see Paul v. Joel, 3 H. & N. 455; 28 L. J., Bxoh. 143 ; 4 H. & N. 355, af. firmed in error. 416 OF NOTICE OP DISHONOR. to decide the case then under consideration, they are extra-judi- cial. r*2fiQ1 ^^® decision in Solarte v. Palmer is unquestionably *bind- ing to this extent, that a notice in those very terms and under those very circumstances is bad and ought to be withdrawn from the jury. But in strictness this decision 'is binding no fur- ther. Notwithstanding, therefore, the case of Solarte v. Palmer, the true rule in nearly all cases seems now to be this : that where a notice of dishonor conveys expressly or impliedly an intimation intelligible to ordinary uiider standings of dishonor, and of demand of payment, the notice is sufficient. The notice must not so misdescribe the instrument that the de- fendant may be led to confound it with some other. Thus, a notice in the following terms : " I give you notice, that a bill for, &c., at, " Your draft upon C. for 502., due 3rd March, is returned to us unpaid, and if not taken up this day, proceedings will be taken against you for the recovery thereof," was held sufficient. Robson t. Curlewis, 2 Q. B. 421 (42 B. G. L. R.). " A bill, &c., is unpaid, noimg 5s," is sufficient, the expression noting indicating a dishonor. Armstrong t. Christiani, 17 L. J., C. P. 181 ; 5 0. B. 687 (57 B. C. L. R.), B. 0. Where the holder, when the bill became due, said to the executor of the accep- tor, who was also indorser, " I have brought a bill from the plaintiffs, you know what it is j" and the defendant said, " I am executor of the drawee, you must per- suade the plaintiff to let the bill stand over a few days, because the acceptor has been dead only a few days. I shall see the bill paid." Notice of dishonor was held to be proved. Gaunt v. Thompson, 18 L. J., G. P. 125 ; 7 G. B. 400 (62 B. G. L. R.), s. 0. " We beg to acquaint you with the non-payment of William Miles's acceptance to James Wright's draft of 29th December last, at four months, 502., amounting, with expenses, to 502. 5j. Id., which remit us in the course of post without fail, to pay to Messrs. Everards & Co., Lynn," was held sufficient. Everard v. Watson, 1 B. & B. 801 (72 E. C. L. R.). In this case Lord Campbell expressed his regret at the deci- sion of Solarte v. Palmer; and see Paul v. Joel, ante. It is conceived that the following is the full form of notice to be given by the holder to an indorser. It may be easily altered and adapted to circumstances : — " JVo. 1, Fleet street, London, 26th Sept. 1842. — Sir, I hereby give you notice that the bill of exchange, dated 22nd ult., drawn by A. B. of , on G. D, of , for IWl, payable one month after date to A. B. or his order, and indorsed by you, has been duiy presented for payment, but was dishonored, and is impaid. I request you to pay me the amount thereof. 1 am, Sir, your obedient servant, G. M. — To Mr. E. #., of , [Mer- chant.") The construction of all written instruments is for the Court, but the meaning of peculiar expressions, which in particular places or trades have a known meaning, is for the jury. Hutchison v. Bowker, 5 M. & W. 542. OF NOTICE OF DISHONOE. 417 &c., drawn hy yon upon, &c., lieS' at, &o., dishonored," has been held insufficient to sustain an action against the indorser, who is not also the drawer,{i) But this is only a Nisi Prius decision and doubtful. It has since been held that if there be more than one bill to which the notice may apply, it lies on the defendant to prove that fact.(A) And if a note be improperly called a bill it is no ob- jection, (Z) nor if a bill be improperly called a note,(m) nor if the characters of drawers and acceptors of a bill be transposed.(w) In short, that a misdescription which does not mislead is imma- terial, (o) is now the rule of law, as well as of convenience and justice. (1) It has been held that notice of dishonor need not state on whose [i] Beauehamp t. Cash, 1 D. & R., N. P. C. 3. Though every indorser ia in the nature of a new drawer, ante, p. 142. But see Mellersh y. Eippen, 7 Exch. 5T8. (A) Sbelton v. Braithwaite, 7 M. & W. 436. {I) Messenger t. Southey, 1 Man. & Gr. 76 (39 E. C. L. E.) ; 1 Scott, N. B. 180, B. c. (m) Stockman v. Parr, 11 M. & W. 809. (n) Mellersh v. Rippen, 7 Exoh. 578. {o) Bromage t. Vanghan, 9 Q. B. 608 (58 B. C. L. R.) ; Mellersh v. Rippen, supra; Dennistoun v. Stewart, 17 Howard, American Rep. 606; Harpham t. Child, 1 P. & P. 652. (1) If in a notice of non-payment, dated on the day the bill is due, it is stated by mistake that it was protested the evening before, and that the holders look to the indorser for payment, it is a question for the jury whether the indorser was misled. Ontario Bank v. Petrie, 3 Wend. 456 ; Ross v. Planters' Baijk, 5 Humphrey, 335 ; Moorman v. Bank of Alabama, 3 Porter, 353 ; Rowan t. Odenheimer, 5 Smedes & Marshall, 44; Mills v. U. S. Bank, 11 Wheat. 43 1 ; Bank of Rochester v. Gould, 9 Wendell, 279; M'Knight v. Lewis, 5 Barb. S. 0. 681. Any form of notice to an indorser is sufficient to fix his liability, if the instrument in question was intended to be described in such notice, and the party was not misled or deceived thereby as to the instrument intended. Tobey v. Lennig, 14 Penna. St. Rep. 483; Kilgore T. Bulkley, 14 Conn. 362 ; Spann v. Baltzell, 1 Branch, 301 ; Crocker v. Getchell, 10 Shepl. 392 ; Cayuga County Bank t. Warden, 1 Comstock, 413 ; Dennistown v. Stewart, 17 Howard, 3. C. Rep. 606; Young v. Lee, 18 Ibid. 187. Where there is no dispute as to the facts, the sufficiency of the notice is a question of law for the Court. Remer v. Downer, 21 Wend. 10 ; 23 Wend. 620; 25 Wend. 277; Thompson V. The State, 3 Hill, S. 0. 77 ; Fleming v. Fulton, 6 Howard (Miss.), 473; Johnston v. M'Grim, 4 Devereux, 277 ; Sinclair v Lynch, 1 Speers, 244 ; Piatt v. Drake, 1 Dougl. 296 ; Dole v. Gold, 5 Barb. S. C. 490 ; Nevins v. Bank, 10 Michigan, 547 ; Ricketts v. Pendleton, 14 Maryland, 320. The notice of non-payment of a note to charge an Indorser must show that the presentment was made at the proper time; therefore where the notice stated that the note had been " this day presented for payment," and payment refused, and the notice was without date, it was held, that it was defective. Wynn v. Alden, 4 Denio, 163. 27 418^ OF NOTICE OF DISHONOR. behalf payment is applied for, nor where the bill is lying,(p) and a misdescription of the place where the bill is lying is immaterial,(g') unless, perhaps, a tender were made there. If the notice, by mistake, misdescribe the party giving it, by representing that it is given by or on behalf of A., when in reahty it is given by or on behalf of B., it is, nevertheless, *good. L ^<^i But tiie party who receives the notice is to be placed in the same situation as if the notice had really been given by A.j and is at liberty to object any inability in A. to give notice; as, for example, that A. had been discharged by laches, or had no right of action on the bill.(r) It is not necessary that a copy of the protest should accompany notice of the dishonor of a foreign bill, (s) But information of the protest should be sent,(<) if the party to whom notice is transmitted reside abroad.(M) Secondly. As to the mode of transmitting the notice. Putting a letter into the post is the most common and the safest mode of giving notice. It is not necessary to prove that the letter was received, and any miscarriage will not prejudice the party giving notice;(a;)(l) It has been ruled that, in London, delivery {p) TA'^oodthorpe t. Lawes, 2 M. & W. 109 ; Housego v. Cowne, 2 M. & W. 348 ; Harrison v. Ruscoe, 15 L. J., Exch. 110 ; 15 M. & W. 231, s. o. ; Maxwell v. Brain, Exch. 1866. \ (?) Rowlands v. Sprinjett,.14 L. J., Exch. 227 ; 14 M. & W. 7, 8. o. (r) Harrison v. Ruscoe. 15 L. J., Exch. 110 ; 15 M. & W. 231, s. o. (i) Goodman v. Harvey, 4 Ad. & El. 870 (31 E. C. L. R.) ; 6 N. & M. 372, s. o. (() Rogers v. Stephens, 2 T. R. 713; Gale v. Walsh, 5 T. R. 239; Brough v. Parkins, 2 Ld. Raym. 993; Cromwell v. Hynson, 2 Esp. 511 ; Robins t. Gibson, 3 Camp. 334 ; 1 M. & Sel. 288, s. c; B. N. P. 271. («) See the Chapter on Protest. {x) Saunderson T. Judge, 2 H. Bl. 509; Kufh v. Weston, 3 Esp. 54; Parlcerv. Gordon, 7 East, 385 ; 3 Smith, 358, s. o. ; Langdon t. Hulls, 5 Esp. 157 ; Dobree v. Eastwood, 3 C. & P. 250 (14 E. C. L. R.) ; Stoclsen v. Collin, 7 M. & W. 515 ; 9 0. & P. 653 (38 E. C. L. R.), B. ; Woodcocltv. Houldsworth, 16 L. J., Exch. 49; 16 M. & W. 126, s. 0. ; Mackay v. Judkins, 1 F. & F. 208. (1) In order to charge an indorser, where it is proper to send notice of protest by mail, which was not received in due course, the onmis upon the plaintiff "to show that the notice was properly mailed. Friend v. Wilkinson, 9 Grattan, 31. If it appears from the testimony of several witnesses that in the regular routine of the OF NOTICE OF DISHONOR. 419 of a letter to a bellman in the street is not sufficient, and that it should be posted either at the General Post Office, or at an au- thorized receiving-house.(y) It is not sufficient that the letter be directed, generally, to a person at a large town ; as, for example, to " Mr. Haynes, Bris- tol,"{z) without specifying in what part of it he resides, unless where the person to whom the letter is sent is the drawer of the bill, and has dated it in an equally general manner. (a) But if he has done so, then the sending of a letter, with an address as general as the drawer's *description, as "T. M. Barron, Esq., p^o-^-, London," will at least be evidence from which the jury may ■- J infer 'due notice.(6)(l) If the notice to the drawer arrive too late, through misdirection, it is for the jury to say, whether the holder {y) Hawkins v. Eutt, Peake's N. P. 0. 186 ; but see Pack v. Alexander, 3 M. & Sgo. T89 and Skilbeck v. Carbett, 14 L. J., Q. B. 339 ; 7 Q. B. 846 (53 B. 0. L. R.), s. 0. " A Bellman," says Lord Denman, "is an ambulatory post-office." (z) Walter v. Haynes, R. & M. 149. (a) Mann t. Moore, 1 R. & M. 249 ; Clarke v. Sharpe, 3 M. & W. 166; 1 Hor. & H. 35, s. 0.; Sigersv. Browne, 1 Moo. & Rob. 520; Burmester t. Barron, 17 Q. B. 828 (79 B. C. L. R.). (o) Ibid. holder's business notice mustihave been mailed on the proper day, if at all, and it appear that it was received, it will be presumed to hare been mailed at the proper time. Commercial Bank V. Strong, 2 Williams, 316. A post-mark is primd facie evidence that a notice was mailed on that day. Early v. Preston, 1 Patton & Heath, 228 ; Crawford v. Branch Bank, 1 Alabama, 205. Proof of the fact that notice was given is primd facie evidence that it was in proper form. Burgess v. Vreeland, 4 Zabriskie, 71. Parol evidence of notice may be given though the notice was in writing, and the defendant not called on to produce it. Scott v. Betts, Hill & Denio, 363 ; Burgess v. Vreeland, 4 Zabriskie, 71 ; Paten v. Lent, 4 Duer, 231. As to evi- dence of notice, see Falconer v. Rogers, Hill & Denio, 127 ; Worley v. Waldran, 3 Sneed, 548 ; Massachusetts Bank v. Oliver, 10 Gushing, 557 ; Cabot Bank v. Rus- sell, 4 Gray, 167; Beal v. Parish, 24 Barbour, 243. Notice cannot be proved by the affidavit of a person deceased, when it did not appear that the act was done in the regular course of his business. Bradbury v. Bridges, 38 Maine, 346. (1) Where the indorser of a promissory note resides in a town in which there are two post-offices, a notice of the dishonor of the note, addressed to him at the town generally, is sufficient primd facie; though liable to be rebutted by proof that he was accustomed to receive his letters at one of the offices only, and that the holder of the note might have ascertained that fact by reasonable inquiry. Morton v. Westcott, 8 Cushing, 425. Where an indorser resided in a village where was a post-office, at which he received letters, and had an office in a neighboring village, where he received most of his letters, it was held that notice of non-payment ad- dressed to him at the latter village was sufficient. Montgomery Bank v. Marsh, 3 Selden, 481. 420. OF NOTICE OP DISHONOK. used due diligence to discover the drawer's address.(e). If the notice miscarry from the indistinctness of the drawer's hand- writing on the bill, he will not be discharged.(c?) Where a witness said that the letter, containing notice of dishonor, was put on a table to be carried to the post-office, and that bj the course of business all letters deposited on this table were carried, to the post-office by a porter. Lord Ellenborough said, " You must go further ; some evidence must be given that the letter was taken from the table in the counting-house and put into the post office. Had you called the porter and he had said that, although he had no recollection of the letter in question, he invariably carried to the post-office all the letters found upon the table, this might'have done,(e) but I cannot hold this general evidence of the course of business, in the plaintiff's counting-hoUse, to be sufficient."(/) The post marks in town or country, proved to be such, are evidence that the letters, on which they are, were in the office to which those marks belong, at the time of the dates of such marks.(^) But they are not conclusive evidence. (A) A duplicate original, or an examined copy, or oral evidence of a written notice of dishonor, are admissible without notice to pro- duce the original.(«) Though there be a general post, the holder may send notice by a special messenger :(k) but if the notice be not communicated by the special messenger till after the day when it would have been (<■) Ibid. ; see Esdaile v. Sowerby, 11 East, 114. (d) Hewitt T. Thompson, 1 Moo. & Rob. 543. (c) So held ia Skilbeck v. Garbett, 14 L. J., Q. B. 338 ; Y Q. B. 846 (53 B. 0. L. R.), s. c. (/) Hetherington v. Kemp, 4 Camp. 194; Hawkes v. Salter, 4 Ring. 115 (13 B. C. L. R.) ; 1 Moo. & P. 750, s. p. ; and see Hagedorn v. Reid, 3 Camp. 379 ; 1 M. & S. 567, S. c. (g) Kent v. Lowen, 1 Camp. 177; Fletcher v. Braddyl, 3 Stark. 64 (3 E. C. L. R.) ; Rex T. Plumer, R. & R. 0. 0. 254; Rex v. Watson, 1 Camp 215; Langdon v. Hulls, 6 Esp. 156 ; Rex v. Johnson, 7 East, 65. (h) Stocken v. Collin,' 7 M. & W. 515 ; 9 C. & P. 653 (38 E. C. L. R.), s. o. (e) Ackland v. Pierce, 2 Camp. 601 ; Roberts v. Bradshaw, 1 Stark. 28 (2 E.G. L. R.) ; Kine v. Beaumont, 3 B. & B. 288 (7 E. C. L. R.) ; 7 Moore, 112, s.i o. ; secus as to a notice of the dishonor of a bill, not being the bill sued on; Lanauze v. Palmer, 1 Moo. k Mai. 31. (A) Dobree v. Eastwood, 3 C. & P. 250 (14 E. C. L. R.). OF NOTICE OF DISHONOR. 421 conveyed by the post, it is insufficient. (Z) *Where the communication by the post is infrequent, as where the '- ■' party to whom notice is to be sent lives out of the usual course of the post, so that a letter may, possibly, not reach him for a fort- night, he may be charged a reasonable sum by the holder for the expense of a special messenger, (m) Personal service of a written notice is not necessary, (w) In the case of a foreign bill, it is sufficient to send it by the first regular ship bound for the place to which it is to be sent ; and it is no objection that, if sent by a chance ship, bound elsewhere, it would have arrived sooner. " It is sufficient for a party in India," says Eyre, C. J., " to send notice by the first regular ship going to England, and he is not bound to accept the uncertain conveyance of a foreign ship." — "It was enough to do so by the first ship, whether English or foreign, that was going to England in the regular course of conveyance. "(o) We have already seen, in what cases a copy, or notice of the protest must accompany notice of the dishonor of a foreign bill. Thirdly, as to the place at which notice is to be given. A notice of dishonor should regularly be sent to the place of business, or to the residence of the party for whom it is de- signed.(p)(l) (I) Darbishire v. Parker, 6 East, 3 ; 2 Smith, 195, s. 0. It has been held, that it may arrive later during business hours in the same day without discharging the in- dorser. Bancroft v. Hall, Holt's N. P. C. 476. (m) Pearson v. Crallan, 2 Smith, 404. (n) Housego v. Cowne, 3 M. & W. 348. (0) Muilman v. D'Eguino, 2 H. Bl. 565. (p) It has been held in America that notice put into the post-office, if the parties lire in different places, is good. It is otherwise when the parties reside in the same town. Where a person has a dwelling-house and counting-room in the same town, a notice sent to either place is sufficient. The holder of a bill or note has a right to adopt a private conveyance instead of the mail, for the receipt and transmission of notice to a drawer or indorser of the dishonor thereof; but in such case it is incumbent on the holder to show that due diligence was used. If a party receive notice of the dishonor of a bill in due time, he cannot object to the mode of conveyance. See 4th American ed. of Byles on Bills. (1) Notice put into the post-office if the parties live in different places is good. Bussard v. Levering, 6 Wheat. 102; Muun v. Baldwin, 6 Mass. 316; Stanto^v. 422 OF NOTICE OF DISHONOR. If a party, whose name is on a bill, direct a notice to be sent to him -when absent at- a distance from his residence, so that its trans- mission thither, and thence to- the prior parties, will occupy more time than if the notice had passed through the ordinary place of residence, a notice to him at the substituted and more distant place r*07Qn ^^^'' ^* seems, not only be a *good notice as against him, L J but also a good notice as against, prior parties.(g') (?) Shelton v. Braithwaite, 8 M. & W. 252. Blossom, 14- Mass. 116; Orisson v. Williamson, 1 A. K. Marshall, 456 ; Foster v. McDonald, 5 Alabama, 316 ; Warren v. Oilman, 5 Shepl. 360 ; Lord v. Appletdn, 3 Shepl. 270 ; Gindrat r. Mechanics' Bank, 7 Alabama, 324 ; Ellis .t. Commercial Bank, 1 Howard, Miss. 294; Lindenberger v. Beall, 6 Wheat. 104; Fish t. Jack- man, 1 App. 467; Weakly v. Bell, 9 Watts. 273 ; Janes v. Lewis, 8 Watts & Serg. 14; Hazleton Coal Co. v. Ryerson, 1 Spencer, 129 ; Wilson t. Senier, 14 Wisconsin, 380 ; Woods v. Neild, 8 Wright, 86. When the indorser adds his address to his signature, notice mailed to him by that address is sufficient. Baker T. Morris, 25 Bar- bour, 158 ; Davis T. The Bank of Tennessee, 4 Sneed, 390. Notice to an indorser sent by mail to his place of business in another city, when he resides in the very place where the note is protested is not sufficient. Van Vechten v. Pruyn, 3 Eernan, 549. Notice by mail is not sufficient when the parties reside in the same town. Green t. Dar- ling, 3 Shepl. 143 ; Bailey v. Bank of Missouri, 7 Missouri, 467 ; Kramer t. McDowell, , 8 Watts & Serg. 138 ; Ireland t. Kip, 10 Johns, 490 ; s. c, 11 Joh;is. 231 ; Stephenson T. Primrose, 8 Porter, 155 ; Curtis v. State Bank, 6 Blackford, 312 ; Davis v. Gowes, 1 App. 447; Pierce v. Pendar, 5 Mete. 352; Brindley v. Barr, 3 Harrington, 419; Patrick v. Beazley, 6 Howard (Miss.), 609; Wilcox v. McNutt, 2 Ibid. 777 ; Timms V. Delisle, 5 Blackford, 447; Curtis v. State Bank, 6 Ibid. 312 ; Ransom v. Mack, 2 Hill, 587 ; Hogatt v. Bingaman, 7 Howard (Miss.), 565 ; Manchester Bank v. Fel- lows, 8 Foster, 302 ; Costin v. Rankin, 3 Jones (Law), 387; Vance v. Collins, 6 California, 435; Davis v. Bank of Tennessee, 4 Sneed, 390; Bowling v. Arthur, 34 Mississippi, 41 ; Power v. Mitchell, 7 Wisconsin, 161 ; Nevins v. Bank, 10 Mi- chigan, 547. See Walters v. Brown, 15 Maryland, 285. Notice to an indorser may well be sent through the post-office, when the place of protest and the residence of the indorser are in the same city, when the latter is yet ten miles distant, and there is a post-office there at which it is not suggested that the indorser does not usually receive his letters. Paton v. Lent, 4 Dner, 231 ; Bonduraut v. Everett, 1 Metcalfe, 618; Barret V. Evans, 28 Missouri, 331. Though the first indorser lives in the same town with the maker, yet a notice to him through the post-office from a second indorser living in another town is good. True v. Collins, 3 Allen, 438. It is not that the indorser resides in same town where the protest is made, which entitles him to personal notice, but that he resides in the same place with the person who gives the notice. West River Bank v., Taylor, 7 Bosworth, 466. Where a person has a dwelling-house and counting-room in the same town, a notice sent to either place is sufficient. Bank of Columbia v. Lawrence, 1 Peters, 578. The post-mark on a letter is not evidence, ^cr se, that the letter was deposited in the post-office on the day indicated by it ; but, its genuineness being proved, it is primS, fade evidence to fix the liability of a drawer of a protested bill, of the time when the notice was OP NOTICE OF DISHONOR. 423 A message sent to a counting-house within the usual hours of husiness has been held suflSoient, though no person be in attendance. Thus, where the holder sent to a counting-house, and the messenger knocked at the outer door on two successive days, making noise sufficient to be heard by persons within, Lord Ellenborough said :(»•) " The counting-house is a place where all appointments respecting the business, and all notices, should be addressed ; and it is the duty of the merchant to take care that a proper person be in attendance. It has, however, been argued, that notice in writing left at the counting-house, or put into the post, was necessary, but the law does not require it, and with whom was it to be left ? Putting a letter into the post is only one mode of giving notice ; but, where both parties are residing in the same town, sending a clerk is a more regular and less exceptionable mode."(s) But the mere act of going and knocking at the door will not sustain an allegation of actual notice, though it may enlarge the time neces- sary for giving it, or under some circumstances be evidence of a dispensation. (^) A message left at the dwelling-house of a private person with his wife has been held sufficient. (m)(1) (t) But this case was decided before Solarte v. Palmer, and when the form of pleading made it unnecessary to distinguish between actual notice and a dispensa- tion with notice. (*) Cross T. Smith, 1 M. & S. 545 ; Goldsmith v. Bland, Chit. 10th ed. 319 ; Bayley, 6th ed. 276 ; Bancroft v. Hall, Holt's N. P. 0. 476. (<) Allen T. Edmundson, 2 ExcU. 719. («) Housego v. Cowne, 2 M. & W. 348. mailed. Crawfoi'd v. Branch Bank, 7 Alabama, 205 ; Early v. Preston, 1 Patton & Heath, 228. The holder of a bill or note has a right to adopt a private convey- ance instead of the mall, for the receipt and transmission of notice to a drawer or indorser of the dishonor thereof, but in such case it is incumbent on the holder to show that due diligence was used. Jarvis v. St. Croix Man. Co., 10 Shepley, 287. If a party receive notice of the dishonor of a bill in due time, he cannot object to the mode of conveyance. Whiteford v. Burckmeyer, 1 Gill, 127; Bank of U. S. v. Corcoran, 2 Peters, 121; Hyslop v. Jones, 3 McLean, 96; Poster v. Sineath, 2 Richardson, 338 ; Bradley v. Davis, 26 Maine, 45 ; Manchester Bank v. Fellows, 8 Foster, 302 ; Grinman v. Walker, 9 Iowa, 426. (1) Notice addressed to the post-oflSce of the town where the indorser resides is sufficient. Bank of Manchester v. Slason, 13 Vermont, 334; Carson v. State Bank, 4 Alabama, 148 ; Draper v. Clemens, 4 Missouri, 52 ; Glasscock v. Bank of Missouri, 8 Ibid. 443 ; Crawford v. Branch Bank at Mobile, 7 Alabama, 305 ; Dunlap v. Thomp- son, 5 Yeager, 67; Rand v. Reynolds, 2 Grattan, 171 ; Union Bank of Louisiana v. Stoker, 1 Louis. Annual Rep. 269 ; Seneca County Bank v. Neass, 5 Denio, 329. Where a notice is sent to the poSt-bfBce from which an indorser will get a notice soonest, it is sufficient, though it is not the nearest ofBce in point of distance. Bank v. Lane, 3 424 OF NOTICE OP DISHONOR. Fourthly, as to the time when notice of dishonor should be given. The general rule is, that notice must be given before action brought within a reasonable time after the dishonor ; and that what is a reasonable time is a question of law, depending on the facts of each particular case.(a;) Ac,cordingly, the due interval within which notice may or must be given, in a variety of conjunc- tures, has been defined by the decisions. Where the holder, and the party to whom notice is addressed, live at different places, it is sufScient to send off notice on the day {x) Darbishire v. Parker, 6 Bast, 3; 2 Smith, 195, s. o. Hawks, 453 1 Farmers' Bank v. Battle, 4 Humphrey, 86 ; Sherman y. Clark, 3 McLean, 91 ; Mercer v. Lancaster, 5 Barr, 160 ; Walker v. Bank, 3 Kelly, 486 ; Hunt v. Fish, 4 Barb. S. C. 324. Where the holder of a negotiable security knows the residence of the indorser, but does not know the post-office nearest thereto, notice of protest directed to the post-offlce, which after diligent inquiry is supposed to be nearest, will bind the indorser. Marsh v. Barr, 1 Meigs, 68. It is not sufficient to look for the drawer at the place where the bill is drawn in order to give him notice ; reason- able diligence should be used to ascertain his residence. Fisher y. Eyans, 5 Binn. 542 ; Blakely v. Grant, 6 Mass. 386 ; Branch Bank v. Pierce, 3 Alabama, 321 ; Barn- well y. Mitchell, 3 Conn. 101 ; Carroll y. Upton, 3 Comstock, 211 ; Hill v. Varrell, 3 GreenL 233; Lowery y. Scott, 24 Wend. 358; Foard v. Johnson, 2 Alabama, 565; see Denny y. Palmer, 5 Iredell, 610; Page v. Prentice, 5 B. Monroe,/?^ Where a notary, on the non-payment of a bill, left a notice for the indorser at his boarding- house, with his fellow-boarder, requesting him to deliyer it to the indorser, who was not within at the time, the notice was held sufficient. Bank of the United States y. Hatch, 6 Peters, 250; s. c, 1 McLean, 90; Miles y. Hall, 12 Smedes & Marshall, 332. How notice to be served when the indorser boards at a hotel : Ashley v. Guntor, 15 Arkansas, 415. A notice of non-payment sent to the indorser inclosed under seal and delivered by the messenger to one in the employment of the indorsee, with directions not to open it, is insufficient. The sufficiency of a notice sent by a third person, depends on what the messenger did, not on what he was instructed to do by the holder of the note — on the message that was delivered, not on that which was sent. Paine v. Esdell, 19 Penna. Stat. Rep. 178. Notice may be left at the indorser's dwelling or his place of business. Sanderson y. Reinstadler, 31 Mis- souri, 483; Grinman y. Walker, 9 Iowa, 426; Nevius v. Bank, 10 Michigan, 547. Notice must be left at indorser's place of business, not merely in the building in which he does his business. Kleinman y. Boernstein, 32 Missouri, 311. Service of notice within the usual business hours, and at the usual place of business of the indorser, or in his absence on a person there, but not proven to be in any way con- nected with him, is sufficient. Mechanics' Banking Association y. Place, 4 Duer, 212. Service of notice at the place of business must be during business hours, but service at the residence may be at any reasonable hour. Adams y. Wright, 14 Wis- consin, 408. OS NOTICE OP DISHONOR. 425 next after the day of dishonor. "It is," says Abbott, C. J., "of the greatest importance to commerce, *that some plain and r^oir^-i precise rule should be laid down, i o guide persons in all cases, as to the time within which notice of the dishonor of bills ^lust be given. That time I have always understood to be, the departure of the post on the day following that in which the party receives intelligence of the dishonor. If, instead of that rule, we are to say, that the party must give notice by the next practicable post, we should raise, in many pases, diflBcult questions of fact, and should, according to the different local situations of parties, give them more or less facility in complying with the rule. But no dis- pute can arise from adopting the rule which I have stated."(«/)(l) (y) Williams t. Smith, 2 B. & Aid. 496. It was held in America that notice of non-acceptance or non-payment must be given in a reasonable time in order to charge the drawer or indorser. Though, in some cases, the question of what is reasonable notice has been left to the jury to decide ; yet the vast current of American cases holds, with remarkable unanimity, that it is a matter of law for the determination of the Court exclusively. The holder is bound to give notice of the dishonor of a bill to the parties to be charged by the next practicable mail. Where a bill drawn in that country on Europe has been dis- honored, ilotice must be sent by the first ship bound to any port of the United States ; and it is not sufBcient to send it by the first ship for the port where the drawer and indorser reside. See Byles on Bills, 3d American ed. pp. 32T, 328. (1) Notice of non-acceptance or non-payment must be given in a reasonable time, in order to charge the drawer or indorser. Though In some cases the question of what is reasonable notice has been left to the jury to decide, yet the vast current of American cases hold, with remarkable unanimity, that it is a matter of law for the determination of the court exclusively. Philips v. M'Curdy, 1 Har. & Johns. 187 ; United States v. Barker, Paine, 156 ; 12 Wheat. 559 ; Stanto v. Blossom, 14 Mass. 116 ; Mallory v. Kirwan, 2 Ball 192 ; Warder v. Carson's Ex. Ibid. 233 ; Steinmetz V. Curry, 1 Dall. 235; Bank of North America v. M'Knight, 1 Yeates, 147; Den- niston v. Imbrie, 3 Wash. C. C. 396 ; London v. Howard, 2 Hayw. 332 ; Scarborough V. Harris, 1 Bay, 177; Bryden v. Bryden, 11 Johns. 187; Eibble v. Jefferson, 5 Halsted, 139; Stott v. Alexander, 1 Wash. 331 ; Dodge v. Bank of Kentucky, 2 A. K. Marsh. 616 ; Mohawk Bank v. Broderick, 10 Wendell, 304 ; 13 Ibid. 133 ; Hagar V. Boswell, 4 J. J. Marshall, 61 ; Bank of Utica v. Bender, 2 1 Wendell, 643 ; Warren V. Oilman, 3 Shepl. 70 ; Brown v. Ferguson, 4 Leigh. 37; Routh v. Robertson, 11 Smedes & Marshall, 382. The holder is bound to give notice of the dishonor of a bill -to the parties to be charged, by the next practicable mail. Mitchel v. De Grand, 1 Mason, 176 ; Talbot T. Clark, 8 Pick. 54 ; Robinson v. Ames, 20 Johns. 146 ; Dodge v. Bank of Kentucky, 2 A. K. Marshall, 616; Sewall v. Russell, 3 Wend. 277; Hickman v. Ryan, 5 Litt. 24 ; Mead v. Engs, 5 Cowen, 303 ; Freeman's Bank v. Perkins, 6 Shepl. 292 ; Beck- with V. Smith, 9 Ibid. 125 ; Jones v. Wardell, 6 Watts & Serg. 399; Denny v. Palmer, 426 OF NOTICE OF DISHONOR. If the post does not go out on the next day, notice need not be posted till the day after, or till the next post-day. Thus, where the plaintifif received intelligence of the dishonor on Thursday morning, at nine o'clock, though the post did not go out till nine o'clock at night, and no bag was made up on the Friday, but the plaintiff wrote on Saturday, Lord Tenterden said, " It suffices, in this case, that the plaintiff put the letter into the post on Saturday,, for, if he had done so on the Friday, it would not have been for- warded till the Saturday night, and it is immaterial whether the letter lay in the post-olfice or in the plaintiff's hands till the Satur- day. "(s) So, if the post goes out at an unseasonable hour in the morning, the holder is not bound to get up and write by the second post, but may wait for the third. Thus, where a bill was dis- honored on Saturday, in a place where the post went out at half- past nine in the morning, it was held that it was sufficient notice of dishonor to send a letter by the following Tuesday morning's post.(ffl) *Where both the parties live in the same towp, or where ■- -I they live in London,(J) notice must be given in time to be (z) Geill V. Jeremy, Moo. & M. 61. (a) Hawkes v. Salter, 4 Bing. 715 (13 E. 0. L. R.) ; 1 Moo. & P. 750 ; Bray v. Hadwen, 5 M. & Sel. 68 ; Wright v. Shawcross, 2 B. & Aid. 501, n. (i) I am not aware that the precise extent of the word London, as here used, has been defined by any decision, nor that it has been held incumbent on a person giving notice of dishonor to treat all persons living within the limits of what was formerly the twopenny post, as living in the same place. 5 Iredell, 610 ; Whittlesey v. Dean, 2 Ailsin, 263 ; Curry v. Banlc of Mobile, 8 Porter, 360 ; Goodman v. Norton, 5 Shepl. 381 ; Chicit v. Pillsbury, 11 Ibid. 458 ; Sussex Bank v. Baldwin, 2 Harrison, 487; Downs t. The Planters' Bank, 1 Smedes & Mar- shall, 261 ; Deminds v. Kirkham, Ibid. 644 j Hoopes t. Newman, 2 Ibid. 71 ; Carter T. Burley, 9 N. Hamp. 558 ; Manchester Bank v. Fellows, 8 Poster, 302. On the day of protest or the next day; Manchester Bank v. Fellows, 8 Foster, 302; McFarland V. Pico, 8 California, 626; Stephenson v. Dickson, 12 Harris, 148; Burgess v. Yree- land, 4 Zabriskie, 71; Bank v. White, 10 Foster, 456 ; Blackman t. Leonard, 15 Louisiana Annual, 59. Notice sent before the close of business hours of the last day of grace is premature. Pierce v. Cate, 12 Gushing, 190. A notice on the day after the third day of grace is too late. Barker v. Webster, 10 Iowa, 593. Note dishonored on Saturday, notice on Thursday is in time. Farmers' Bank v. Vail, 21 New York, 485. Where a bill drawn in this country on Europe has been dishonored, notice must be sent by the first ship bound to any port of the United States ; and it is not sufficient to send it by the first ship for the port where the drawer and indorser , reside. Fleming v. M'Olure, 1 Brevard, 428. OF NOTICE OF DISHONOR. , 427 .received in the course of the day following the day of dishonor. (c) And, therefore, though a letter be put into the post in London on the day after the dishonor, it will not be sufficient notice, unless posted in time to be delivered the same day. Lord Ellenborough : " Where the parties reside in London, each party should have a day to give notice. The holder of a bill is not, omissis omnibus aliis negotiis, to devote himself to giving notice of its dishonor. If you limit a man to a fractional part of a day, it will come to a question how swiftly the notice can be conveyed, — a man and horse must be employed, and you will have a race against time. But here a day has been lost. The plaintiff had notice himself on the Monday, put in the letter on Tuesday afternoon, and the de- fendant does not receive notice till the Wednesday. If a party has an entire day, he must send off his letter conveying the notice within post-time of that day. The plaintiff only wrote the letter to the defendant on the Tuesday. It might as well have continued in his writing-desk on the Tuesday night, as lie at the post-office."((;?) A person who puts the letter into the post on the day when it ought to be received, must show affirmatively that it was posted in time to be received on that day.(e) The post mark is not conclu- sive evidence of the time when a letter is postpd.(/) A party receiving notice of dishonor need not transmit it till the next post after the day on which he himself receives the notice,(^) although there should be no post on the next day. It has been doubted(A) whether, seeing that the acceptor of an inland bill has, as in the case of other debts, the whole *of the day on which the bill falls due to pay it, notice of non- '- -I payment can be given till the day after. But it is now settled that notice may be given, at any time after demand, on the day the bill becomes due. " The other party," observes Lord Ellenborough, (c) Scott y. Lifford, 9 East, 347 ; 1 Camp. 246, s. c; Smith v. Mullett, 2 Camp. 208; Marsh y. Maxwell, 2 Camp. 210, u. ; Jameson, y. Svriuton, 2 Camp. 314; 2 Taunt. 224, h. o. ; Hilton v. Fairclough, 2 Camp. 633 ; Haynes yj Birks, 3 Bos. & Pul. 599; Williams v. Smith, 2 B. & Aid. 500; Fowler y. Hendon, 4 Tyrw, 1002. (d) Smith y. Mullet, 2 Camp. 208. (e) Fowler y. Hendon, 4 Tyrw. 1002. (/) Stocken y. Collin, 7 M. & W. 515 ; 9 0. & P. 653 (38 B. C. L. R.), a. 0. (g) Geill y. Jeremy, Moo. & M. 61. (A) Leftley y. Mills, 4 T. E. 170. 428 OF NOTICE OF DISHONOR. " cannot complain of the extraordinary diligence used to give him information. "(i)(l) Notice of dishonor may be given on the same day, though there be no actual refusal, if the house where the bill is payable be shut up and no one be .there.(y)(2) A banker with whom a bill is deposited to receive payment is, for the purpose of notice, to be considered as a distinct holder, and hag a day to give notice to his customer, and the customer another day to give notice to the antecedent parties.(A) Upon the same principle, where the holder of a bill employed an attorney to give . notice to an indorser, and the attorney wrote to another profes- .sional man, requesting him to ascertain the indorser 's residence, and received an answer to his letter, conveying the . desired infor- mation, on the 16th of the month, which information he communi- cated to his principal on the 17th, and on the 18th forwarded the letter containing the notice of dishonor, it was held sufficient. "If," says Lord Tenterden, " the notice had been sent to the prin- cipal, he would have been bound to give notice on the next day, but it having been sent to the agent, he was not bound to give notice on the following day. A banker who holds a bill for a cus- tomer is not bound to give notice of dishonor on the day on which the bill is dishonored. He has another day, and, upon the same principle, I think the attorney in this case was entitled, by law, to be allowed a day to consult his client. "(Z) (i) Bnrbridge v. Manners, 3 Camp. 193 ; Ex parte Moline, 19 Veg. 216 1 Hume v. Peploe, 8 East, 169 ; Hine v. AUely, 4 B. & Ad. 624 (24 B. C. L. R.) ; 1 N. & M. 433, 8. c. (j) Hine t. AUely, 4 B. & Ad. 624 (24 B. C. L. R.) ; 1 N. & M. 433, s. o. (i) Robson v. Bennett, 2 Taunt. 388 ; Langdale t. Trimmer, 15 East, 291 ; Bray T. Hadwen, 5 M. & Set. 68. (I) Firth V. Thrush, 8 B. & 0. 387 (15 B. 0. L. R.) ; 2 Man. & Ry. 259; Dans, i (1) Coleman v. Carpenter, 9 Barr, 178. The holder of a bill, in order to charge an indorser re'sidinfr in another place, may send notice of its dishonor by the mail, if he chooses to send by mail of the day of the default ; but if he does not, he must deposit the notice, directed to the indorser, in the post-office in time to be sent by the mail of the next day, unless the mail of that day be made up and closed at an unreasonably early hour, or in other words, before early business hours ; ur if there be no mail of that day, or the mail of that day be closed at an unreasonably early hour, then by the next practicable mail. Lawson v. Farmers' Bank of Salem, 1 Ohio State Rep. 206 ; Manchester Bank T. Fellows, 8 Foster, 302. (2) Although a demand cannot be made, yet notice must be given within the same time, as if the demand bad been made. Price y. Young, 1 McGord, 339. OF NOTICE OP DISHONOR. 429 Where a bill passes through several .branch banks of the same establishment, each branch may be considered as a distinct holder entitled to receive and transmit notice as such.(OT) *Sunday, Christmas Day, Good Friday, a public thanks- giving or fast day, or any festival on which a man is for- '- ■' bidden by his religion to transact any secular affairs (for the law merchant respects the religion of different people), is not to be reckoned, in computing the time within which notice of dishonor should be given.(w)(l) If a man receive a letter containing notice of dishonor on such a day, he is not bound to open it, and will be considered as having received notice on the next day. It lies on the plaintiff to show that notice was given in due time and before action brought. In an action by the indorsee against an indorser of a bill of exchange, a witness stated that, either two or three days after the dishonor of the bill, notice was given by letter to the defendant; notice in two days being in time, but notice on the third too late. Lord EUenborough : " The witness says two or three days, but the third day would be too late. It lies upon you to show that notice was given in due« time, and I cannot go upon probable evidence without positive proof of the fact. Nor can I infer due notice from the non-production of the letter. The only consequence is, that you may give parol evi- dence of it. The onus probandi lies upon the plaintiff, and, since he has not proved due notice, he must be nonsuited, "(o) So it L. 151, s. 0. See, however, In re Leeds Banking Company, 1 Law Rep. Eq. 1 ; 35 L. J., Gh. 33. But in this case the prior decisions were not brought under the notice of the Vice-Chancellor. (m) Corlett v. Jones, Exch. 1842 ; Clode v. Bayley, 12 M. & W. 51. And so held, although the bill may have passed by delivery without indorsement. Ibid. See further as to branch banks, Woodland v. Fear, V E. & B. 519 (90 E. C. L. E.). (n) 39 & 40 Geo. 3, c. 42 ; 7 & 8 Geo. 4, c. 15 ; Llndo v. Unsworth, 2 Camp. 602 ; Tassell v. Lewis, 1 Ld. Raym. 743. It is held in America that bills of exchange payable in Massachusetts are properly protested on the day preoeding-the fast day, if they fall due on that day. See Byles on Bills, 4th American ed. (0) Lawson v. Sherwood, 1 Stark. 314 (2 B. 0. L. R.). (1) Martin v. IngersoU, 8 Pick. 1. Bills of exchange payable in Massachusetts are properly protested on the day preceding the fast day, if they fall due on that day. Chamberlain v. Maitland, 5 B. Monroe, 448. 430 OF NOTICE OP DISHONOR. lies on the plaintiff to show that notice was given and received before action brought. Therefore, where the notice was given and the action brought on the same day, the plaintiff was nonsuited, because he did not show by aflSrmative evidence that the notice was received before the writ issued.(p) When the party to whom notice should be given cannot be found, the time is extended.(g') Each indorser has a day to transmit notice. When there are several indorsers, the time within whioh each is entitled to notice of dishonor depends on the parties by whom and to whom the notice is given, and will therefore be more conveni- ently discussed after we have considered the parties who are to give and receive notices. *Fifthly, we are to consider by whom the notice ought [*278] , , • ■- -■ to be given. The object "of notice is twofold; first, to apprise the party to whom it is addressed of the dishonor : and, secondly, to inform him that the holder, or party giving the notice, looks to him for payment, (r) Hence it follows that notice' can only be given by some party tg the instrument, though he need not be the actual holder of the bill at the time,(s) but that a stranger is incompetent' to give it.(<)(l) And it has been held by Lord Eldon, that notice (p) Castrique v. Bernabo, 14 L. J., Q. B. 3 ; 6 Q. B. 498 (51 B. C. L. B.) ; s. o. (?) See post. (r) Tindal v. Brown, 1 T. R. 167. («) Chapman v. Keane, 3 Ad. & B. 193 (30 E. C. L. R.) ; 4 N. & M. 607, B. 0. ; Harrison v. Ruscoe, 15 L. J., Exch. 110 ; 15 M. & W. 231, s. o. ; Lysaghtv. Bryant, 19 L. J., C. P. 160; 9 C. B. 46 (67 E. C. L. R.), s. c. (*) Stewart v. Kennett, 2 Camp. 177. It has been held in America that notice must be given by, or by the authority of, a party, or one who on the return of the bill tp him would have a right of aclion On it. A written notice, not signed by any person, of -the dishonor of a bill, and sent by mail to an indorser, is insufficient to hold him. He who accepts or pays suprapro- test, must give the same notice, in order to cha.rge a party, which is necessary to be given by other holders. There is the same necessity for notice of non-acceptance, &c., when a bill is paid for the honor of one of the jiarties as in other cases. See the 3d American edition of Byles on Bills, p. 332. (1) Notice must be given by, or by the authority of a party, or one who on the return of the bill to him would have a right of action on it. Chanvine v. Fowler, Wendell, 179 ; Baohellor v. Priest, 12 Pick. 406. A written notice not signed by any person of the dishonor of a bill, and sent by mail to an indorser, is insufficient! to hold him. Walker v. State Bank; 8 Missauri, 704'. Notice must be signed or OF NOTICE OF DISHONOR. 431 by the first indorsee, who had not himself received notice from the second indorsee, and who was not, therefore, obliged to take back the bill, was insufficient as between the second indorsee and the drawer. (m) And it seems clear, that even a party to the bill, who has been already discharged by laches, or who could not in any event sue, is incompetent to give notice(2!) But a prior indorsee who has himself received due notice may transmit it,(^) though he may not know that the bill has been dishonored. (3) And notice by the holder, or by a party who is liable to be sued and may be entitled to sue, will enure to the benefit of all antecedent or sub- sequent parties. So that a notice by the last indorsee to the drawer will opera;te as a notice from each indorser to the drawer ; and if the payee or first indorsee has duly received notice, or has not been discharged by laches, a notice by him to the drawer will be equivalent to a notice from each indorser, and from the holder to the drawer, (a) And a notice from *an intermediate party may, in pleading,, be described as a notice from the L J plaintifiF.(5) ' There are two Nisi JPrius cases(e) to be found in the books, in which Lord Kenyon and Lord EUenborough are reported to have held respectively, that notice of dishonor from the acceptor him- self was equivalent to notice by the holder. But it is conceived, that in those cases the holder must have constituted the acceptor his agent for the purpose of giving notice, or that they are not (u) Ex parte Barclay, 1 Vea. SOT ; but quaere, since the case of Chapman t. Keane, 3 Ad. & B. 193 (30 E. 0. L. R.) ; 4 N. & M. 607, s. 0. ; unless the party giring the notice had been already discharged by laches. (x) Harrison t. Ruscoe, 15 L. J., Exch. 110; 15 M. & W. 231, s. c. See post; and seeMiers V. Brown, 11 M. & W. 372. (y) Jameson v. Swinton, 2 Camp. 373 ; 2 Taunt. 224, s. 0. ; Wilson v. Swabey, 1 Stark. 34 (2 E. C. L. R.). (z) Jennings v. Roberts, 24 L. J., Q. B. 102 ; 4 E. & B. 615 (82 E. C. L. R.), s. 0. (0) Ba,yley, 6th ed. 251. (6) Newen v. Gill, 8 C. & P. 367 (38 E. C. L. R.). (c) Shaw V. Croft, Chit. 9th ed 494 ; Selw. 9th ed. 332 ; Rosher t. Kieran, 4 Camp. 87. , indicate from whom it proceeds. Klockenbaum v. Pierson, 16 California, 375. He who accepts or pays supra protest, must give the same notice in order to charge a party which is necessary to be given by other holders. Martin v. IngersoU, 8 Pick. 1; Grosvenor T. Stone,- Ibid. 79; Konig v. Bayard, 1 Peters, 262. There is the same necessity for notice of non-acceptance, &o., when a bill is paid, for the honor of .one of the parties, as in other cases. Lenox t. Leverett, 1 Mass. 1 . 432 OF NOTICE OF DISHONOR. law, being at variance with the general principle laid down in Tindal v. Brown, and recognized in a variety of subsequent cases.(d) Notice of dishonor is not invalid because the person giving it did not know that the bill had been dishonored. If a bill is dishonored' in fact, and a party to it unequivocailly asserts that fact in a notice of dishonor, it is sufficient, (e) Notice of dishonor may be given by any agent who holds the bill as a banker or attorney, and in the agent's own name.(/) And it has been held, that a notice given by a party to a bill in the name of an indorser, but without his authority, is good.(^) But a tradesman's foreman or servant is not necessarily such an agent as can give a good notice. (A)(1) {d) See Baker v. Birch, 3 Camp. 107 ; Pickin v. Graham, 1 C. & M. 725 ; 3 Tyrw. 923, s. c. ; Harrison v. Ruscoe, 15 L. J., Bxch. 110; 15 M. & W. 231, s. c. The case of Tindal v. Brown, however, so far as it authorizes the conclusion that the party giving notice must be the actual holder, is now overruled ; Chapmaii v. Keane, 3 Ad. & E. 193 (30 B. C. L. R.) ; 4 N & M. 607, s. 0. (e) Jennings v. Roberts, 4 E. & B. 615 (82 E. C. L. R.). (/) Woodthorpe v. Lawes, 2 M. & W. 109; Rowe v. Tipper, infra. As to the- effect of a misdescription of his principal by the agent, see ante, as to the form of notice. {g) RogersOh v. Hare, 1 Jur. 1. (A) East V. Smith, 16 L. J., Q. B. 292 ;, 4 D. & L> 744, s. u. In America it has been held that a bank, having a bill for the purpose of collec- tion only, is considered the real holder for the purpose of making demand and giving notice. It is not necessary that notice should be given by the holder ; if given by any person authorized by the holder, it is sufficient. See 4th American ed. of Byles on Bills. '' (1} A bank, having a bill for the purpose of collection only, is considered the real holder for the purpose of making demand and giving notice. Freeman's Bank v. Perkins, 7 Shepley, 292; Warren v. Oilman, 5 Ibid. 360; Ogden v. Dobbin, 2 Hall, 112 ; Manchester Bank v. Fellows, 8 Foster, 302. The notary who protests a foreign bill, is authorized to give notice of its dishonor to all persons who are responsible to the holders, and a notice describing himself officially, to which his name is printed, is good. Crawford v. Branch Bank, 7 Alabama, 205 ; Sussex Bank v. Bald- win, 2 Harrison, 487 ; Cowperthwaite v. Sheffield, 1 Sandf. Sup. Ct. Rep, 416 ; Shed V. Brett, 1 Pick. 401; Burbank v. Beach, 15 Barb. 326. Renick v. RobbinSj 28 Mis- souri, 339; Fulton v. Maccracken, 18 Maryland, 528 ; Munroe v. Woodruff, 17 Ibid. 159. It is not necessary that notice should be givefl by the holder; if given by any person authorized by the holder it is sufficient. See Haslett v. Poultney, 1 Nolt & McCord, 466 ; Stanto v. Blossom, 14 Mass. 116 ; Tunno v. Lague, 2 Johns. Gas. 1; Chanvine v. Fowler, 3 Wendell, 179; Bank of Cape Fear v. Seywell, 2 Hawks, 560 ; idead v. Bngs, 6 Cowen, 303 ; Van Hoesen v. Van Alstyne, 3 Wendell, 75 ; Cowperthwaite V. Sheffield, 6 Sandf. S. C. Rep. 416 ; Harris v. Robinson, 4 Howard,. U. S. Eep. 326; Glasgow v. Pratte, 8 Missouri, 336; Glasscock v. Bank, Ibid. 443. OF NOTICE OF DISHONOR. 433 A creditor who holds a bill as a collateral security is bound to present and give notice of dishonor, and is liable for the conse- quences if he omit to do so.(j) *Sixthly, to whom notice is to be given. r*osm Each indorser is entitled to notice. The drawer of a ^ -^ bill payable to a third party is also entitled to notice. The drawee or acceptor is not entitled, nor is the maker of a promissory note. It is the safest course for the holder to give notice himself to all the parties against whom he may wish to proceed within the time within which he is, by law, required to give it to his immediate indorser ;(y) for, if he merely give notice to his immediate in- dorser, and it be not regularly transmitted to the antecedent par- ties, they are discharged ; and, even if it be so transmitted, the evidence required to trace the notice back to a remote party is more voluminous, and may be diflScult to procure. But if, where there are several indorsements, notice of the dishonor be given by the holder to his immediate indorser, and to him only, but an un- broken chain of notices, each given in due time, hang regularly from indorsee to indorser, back to a distant indorser or to the drawer, the latter is liable either to his indorser or to the holder. Thus, where all the parties lived in London, and the holder on the day of dishonor gave notice to the fifth indorser, and the fifth on the following day to the fourth, he on the day after to the third, the third on the next day to the second, and the second on the following day to the first, it was held, in action by the second against the first indorser, that due notice had been given. (A;) And it would also have been sufficient in an action, by the holder at the time of dishonor, against the fifth indorser, and in an action by the fifth indorser against the first.(Z) But, if there be any laches in the circulation of the notice back through the several parties, even though the neglect of one be compensated by the extraordinary diligence of another, laches once committed discharges all the («■) Peacock v.Pursell, 14 C. B., N. S. 728 (108 E. C. L. R.) ; 32 L. J., O.P. 266, s. 0. (/) Rowe v. Tipper, 13 C. B. 249 (74 B. 0. L. B.)- (ft) Hilton V. Siiepherd, 6 East, 14, n. {I) Smitli T. Mallett, 2 Camp. 208 j Marsh t. Maxwell, 2 Camp. 210 ; Jameson t. Swinton, 2 Cam. 373 ; 2 Taunt. 244, s. 0. ; Wilson v. Swabey, 1 Stark. 34 (2 E. C L. E.). 28 434 OF NOTICE OP DISHONOR. aJntecedent parties, and subsequent notices are invalid, for they are given by parties who are no longer liable on the bill.(w?) " It is not enough that the drawer or indorser receive notice in as many days as there are subsequent indorsers, unless it is shown that each in- dorsee gave notice within a day after receiving it ; as, if any one has been beyond the day, the drawer and prior indorsers are dis- charged."(w)(l) Nor can a party, in such a case, by waiving (m) Harrison v. Ruscoe, 15 L. J., Exch. 10; 15 M. & W. 231, s. o. («) Per Lord EUenborough, in Marsh T.Maxwell, 2 Camp. 210, n. ; Smith v. Mullett, 2 Cainp. 208. See Rowe v. Tipper, 13 0. B. 249 (76 E. C. L. R.). In America, also, it is held that, where there are several successive indorsers of a bill of exchange or promissory note, whether the indorsements be upon actual negotiation for value, or for the purpose of collection only, the holder may send notice of dishonor to his immediate indorser ; and if that indorser, after receiving such notice, give reasonable notice to his immediate indorser, the latter is liable to his immediate indorsee, though he does not receive notice as soon as if it were transmitted to him by the holder immediately upon the dishonor. And so of every successive indorser. Bach party has a full day to give notice ; but the over- diligence of one shall not be made to supply the under-diligence of another. Notice of a protest of a bill may be transmitted through the several indorsers to the drawer ; and though the route may be circuitous and delay be occasioned, yet such notice, sent with due diligence throughout, will render the drawer and all the Indorsers liable. A notice given by the holder to the several indorsers enures to the benefit of the Indorsers or preceding parties, so that the first indorser who has received notice of its non-payment from the holder, but not from the second indorser, is liable to tlie second indorser, in the same manner as though notice had been received from him. An agent of the holder is allowed one day to give notice to his principal of a default, and the principal is entitled to one day, after he receives notice, to give or forward notice by mail to the drawer or indorser. Neglect to give notice to the first inddrser does not discharge a subsequent indorser who had notice. See Byles on Bills, 4th American ed. (1) Where there are several successive indorsers of a bill of exchange or promis- sory note, whether the indorsements be upon actual negotiation for value or for the purpose of collection only, the holder may send notice of its dishonor to his imme- diate indorser; and if that indorser, after receiving such notice, give seasonable notice to his immediate indorser, the latter is liable to his immediate indorser though he does not receive notice as soon as if it were transmitted -to him by the holder immediately upon the dishonor : and so of each successive indorser. Eagle Bank V. Hathaway, 5 Metcalf, 212; Butler v. Duval, 4 Yerger, 265; Farmer v. Rand, 4 ShepU 453. Each party has a full day to give notice, but the over-diligence of one shall not be made to supply the want of diligence of another. Brown v. Ferguson', 4 Leigh, 31 ; Simpson v. Tierney, 5 Humphrey, 410 ; American Life Ins. & Trust Co. v. Emerson, 4 Smedes & Marshall, 111 ; Safiford v. Wyckoff, 1 Hill, 11 ; Whitman v. Farmers' Bank, 8 Porter, 258 ; fitting v. Schuylkill Bank, 2 Barr, 355 ; Smith v. OF NOTICE OF DISHONOR. 435 *his own discharge, waive the discharge of antecedeiit p^gn^-, parties. Defendant was the eighth, plaintiff the eleventh^ '- ^ indorser of a bill. The instrument passed through several subse- quent hands, was dishonored at maturity, and returned to the immediate indorsee of the plaintiff. It remained in his hands three days, and then the plaintiff paid it and gave notice to the defend- ant, who received the notice in a shorter interval from the day of dishonor than would have elapsed had each party through whose hands the bill was returned taken the full time allowed by law for giving notice. Abbott, C. J.: "In this case the pla,intiff was Roach, 7 B. Monroe, 17; Carmena v. Bank of Louisiana, 1 Lonie. Annual Rep. 369 ; Crocker V. Getchell, 10 Shepl. 392; Manchester Bank v. Fellows, 8 Poster, 302; Fitchburg Bank t. Perley, 2 Allen, 433. An indorser is not bound to notify his prior indorser, even though he knows of the protest, until he receives notice himself in dne course. West River Bank v. Taylor, 7 Bosworth, 466. Notice of the protest of a bill may be transmitted, through the several indorsers, to the .drawer ; and though the route may be circuitous, and delay be occasioned, yet such notice, sent with due liiligence throughout, will render the drawer and all the indorsers liable. Triplett V. Hunt, 3 Dana, 128. A notice given by the holder to the several Indorsers, enures to the benefit of the indorsers or preceding parties, so that the first indorser who has received notice of its non-payment from the holder, but not from the second indorser, is liable to the second indorser, in the same manner as though notice had been received from him. Marr v. Johnson, 9 Yerger, 1. An agent of the holder is allowed one day to give notice to his principal of a default, and the principal is en- titled to one day after he receives notice to give or forward notice by mail to the drawer or indorser. Ellis v. The Commercial Bank, 7 Howard (Miss.), 294 ; Crawford V. Branch Bank, 7 Aliibama, 205 ; Ohio Life Ins. & Trust Co. t. McOague, 18 Ohio, 54; Hill v. Planters' Bank, 3 Humph. 670; McNeil v. Wyatt, Ibid. 125; Foster v. McDonald, 3 Alabama, 34; Carmena v. Bank of Louisiana, 1 Louis. Annual Rep. 369 ; Colt V. Noble, 5 Mass. 167 ; Church v. Barlow, 9 Pickering, 547 ; see Johnson V. Harth, 1 Bailey, 482 ; IT. S. Bank v. Goddard, 5 Mason, 366 ; Fish v. Jackman, 1 App. 467 ; Lawson v. Farmers' Bank, 1 Ohio State Rep. 206 ; United States v. Bar- ker, 2 Paine C. C. 340. Neglect to give notice to the first indorser, does not dis- charge a subsequent indorser, who had notice. Matthews v. Fogg, 1 Richardson, 369 ; Wilcox v. Mitchell, 4 Howard (Miss.), 272 ; Baker v. Morris, 25 Barbour, 138 ; Struthers v. Blake, 6 Casey, 139. A failure to notify other indorsers, although the attempt is made, will not discharge one who is himself properly notified. Westfall v. Farwell, 13 Wisconsin, 504. The holder of a note is required to charge with notice only the indorser to whom he desires to look for payment, and it belongs to each indorser to see for himself that prior indorsers are duly fixed, if he would have his remedy over against them. Spencer v. Ballon, 18 New York, 327. Notice to the drawer by the acceptor, enures to the benefit of the indorser. Brailsford v. Williams, 15 Maryland, 150, Where the holder transmits to the last indorser notice of non-payment, and the latter on receipt of it sends notice to each of the prior parties, such notice is sufficient to charge each of them. Renshaw v. Trip- lett, 23 Missouri, 213. 436 OF NOTICE OP DISHONOR. clearly discharged by the laches of the holder. Then can he, by paying the bill, place the prior indorsers in a, worse situation than that in •which they would otherwise have been ? I think he cannot do so, and that in paying this bill he has paid it in his own wrong, and cannot be allowed to recover upon it against the defendant."(o) As notice may be given by leaving it at the counting-house, so notice to an agent for the general conduct of business is sufficient notice to the principal, (p) But notice *to a man's attor- L J ney or solicitor is not suflScient.(g') A verbal message left at the drawer's house with his wife has been held' sufiScient. "A person, not a merchant," says BoUand, B., "who draws a bill of exchange, undertakes to have some one at his house to answer any application that may be made respecting it when it becomes due."(r) If the drawer of a bill become bankrupt, notice must neverthe- less be given to him, at all events, before the choice of assignees. If the assignees are appointed, perhaps notice should be given to them.(s) If the bankrupt have absconded, there being as yet no assignees, and a messenger be in possession, notice should be given to the messenger, and to the petitioning creditor.(^) If the party be dead, notice should be given to his personal representatives. (m)(1) (0) Turner T. Leach, 4 B. & Aid. 451 (6 B. 0. L. E.). (p) Crosse t. Smith, 1 M. & Sel. 545. (y) Ibid. (r) Housego t. Crowne, 2 M. & W. 348. (») Ex parte Moline, 19 Ves. 216: Rhode v. Proctor, 4 B. & 0. 517 (10 E. 0. L. R.) I 6 D. & Ry. 610, s. 0. ; Ex parte Johnson, 3 Deac. & Chitty, 433 ; 1 Mont. & Ayr. 622 ; Ex parte Chappell, 3 M. & Ayr. 490 ; 3 Dea. 298, s. 0. (t) So in Scotland notice must be given to the party who represents the estate. (Thomp.^535,) («) I am aware of no actual English decision to this effect. But it has been so decided in America. And if there be no personal representatives, a notice sent to (1) The administrator of an indorser appointed before the maturity of the note, ■who has given due notice of his appointment, is entitled to notice. Oriental Bank V. Blake, 22 Pick. 206. See as to notice where the indorser is dead, Planters' Bank T. White, 2 Humphrey, 112; Cayuga Bank v. Bennett, 5 Hill, 236; Barnes v. Rey- nolds, 4 Howard (Miss.), 114. A notice addressed through mail in due time to the "legal representative" of A. deceased, the indorser, to the last residence of the deceased, is sufficient, though it does not appear that the administrator or executor OF NOTICE OF DISHONOR. 437 Where a bill is accepted payable at a particular place, it is not necessary, in an action against the acceptor, to have given him notice of the dishonor. "Bills of exchange," says Abbott, C. J., "of late years have been made payable by the acceptor, either at the houses of his friends or agents, they being expressly named in the acceptance, or at banking houses, or at houses merely described by their number in a certain street. It is most convenient that the same rule should be laid down as applicable to all these cases. The most plain and simple rule to lay down is this : that the effect of an acceptance in any of these forms, is a substitution of the house, banker, or other person therein mentioned, for *the house f^noo-] or residence of the acceptor, and, consequently, that the '- ^ presentment at the house, or to the party named in the acceptance, is equivalent to presentment at the house of the acceptor. This rule will, I think, be equally applicable to the case of every accept- ance, and will be convenient and advantageous to the public."(a;) A fortiori, it is unnecessary to have given the acceptor such a notice in any action against the drawer.(^) Where partners are jointly liable on the bill, notice to one is Bufficient.(2)(l) the residence of the deceased party's family is sufficient. Merchants' Bankv. Birch, 17 Johns. Rep. 25 ; Bayley, American ed. 418. It has also been held in Americ3*that the administrator of an indorser, appointed before the maturity of the note, who has giyen due notice of his appointment, is entitled tu notice. A notice addressed through the mall in due time to the " legal representatiTe" of A., deceased, the indorser, to the last residence of the deceased, is sufficient, though it does not appear that the administrator or executor ever received it. See 4th American ed. of Byles on Bills. (x) Treacher v. Hinton, 4 B. & Aid. 413 (^ B. 0. L. R.) ; Smith v. Thatcher, 4 B. & Aid. 200; Pearse v. Pemberthy, 3 Gamp. 261. (y) Edwards v. Dick, 4 B. & Aid. 212 (6 B. 0. L. K.). (z) Porthouse v. Parker, 1 Camp. 83 ; Bignold v. Waterhouse, 1 M. & Sel. 259. But it is conceived that notice to a private member of a joint-stock banking corn- ever received it. Pillow v. Hardeman, 3 Humphrey, 538. Notice to an executor before probate is sufficient. Shoenberger v. Lancaster Savings Institution, 4 Casey, 459. The death of the maker, and the fact that the indorser is his execu- tor, does not dispense with the necessity of notice. As executor he is not person- ally bound ; and the purpose of demand and notice is to make him so, and to warn him of the fact that the holder looks to him individually. Groth v. Gyger et al., 7 Casey, 271. (1) Joint owners of a note, who jointly indorse the same, do not thereby consti- tute themselves partners quoad hoc, so that notice of the dishonor of a bill to one 438 OP NOTICE OF DISHONOK. If a man, not a party to a bill, assign without indorsement, he is not entitled to notice of dishonor, (a)(1) And, as a general rule, a man transferring by delivery without indorsement a bill or note payable to bearer is not entitled to notice. We have already seen,(6) that a transferer by mere delivery of a negotiable instrument, made or become payable to bearer, is not in general liable, either on the instrument, or on the consideration. He, therefore (unless in the excepted cases), requires no notice of dishonor. But we have also seen, that if the bill or note payable to bearer r*2841 ^^^^ delivered on account of a pre-existing debt that * delivery is not, primd facie, a sale of the bill or note. On dishonor, therefore, of the bill or note, the liability of the transferer for the original debt revives. But in such a ease the pany would not suffice. See Powles T. Page, 3 C. B. 16 (54 E. 0. L. R.) ; In re Carew, 31 Beav. 39. It is held in America that joint owners of a note who jointly indorse the same, do not thereby constitute themselves partners quoad hoc, so that notice of the dis- honor of a bill to one will charge both. Both must have notice. Where a partnership indorses a note, notice of its dishonor given to a surviving partner is sufficient to bind the legal representatives of the deceased partner, although the holder knew of the decease of such partner before the maturity of the note. See Byles on Bills, 4th .American ed. Mr. Justice Story doubts whether, in the case of joint parties not partners, notice to one only would bind even him. Story on Promissory Notes, p. 36. (ffl) Van Wart T. WooUey, 3 B. & C. 439 (10 E. C. L. R.) ; 5 D. & R. 374; M. & M. 520, s. 0. ; Svvinyard v. Bowes, 5 M. & Sel. 62. But a notice has been held to be in time, although an allowance be made for its transmission through a party not indorsing. See Clode v. Bayley, 12 M. & W. 51. And it has been held in America that a party who purchases a bill and transmits it on account of goods ordered by him, without indorsing it, is not entitled to notice of its dishonor. See 4th American ed. of Byles on Bills. (6) Ante, Chapter on Transfer. will charge both. Both must have notice. Sayer v. Frick, 1 Watts & Serg. 383 ; Willis V. Green, 5 Hill, 232. But where they are partners notice to one is sufficient. Bouldin v. Page, 24 Missouri, 594 ; Miser v. Trovinger, 7 Ohio (N. S.), 281. Where a partnership indorses a note, notice of its dishonor, given to a surviving partner is sufficient to hold the legal representatives of the deceased partner, although the holder knew of the decease of such partner before the maturity of the note. Dabney V. Stidger, 4 Sraedes & Marshall, 749 ; Cocke v. Bank, 6 Humph. 51. (1) A party who purchases a bill and transmits it on account of goods ordered by him without indorsing it, is not entitled to notice of its dishonor. Van Wart v. Smith, 1 Wendell, 219. OF, NOTICE OF DISHONOK. 439 transferee will have made the bill or note his own, unless he have given due notice of dishonor. And we have further seen, that as there may be an express con- tract that the instrument shall not amount to payment, if dishonored, so there are many circumstances from which a jury may infer, that the intention and understood contract of the parties was, that the instrument was not to be payment, if dishonored.(c) It is conceived, that in all cases where, in consequence of the dishonor of bills or notes, made or become payable to bearer, a remedy arises on the consideration, the. transferer is entitled to notice of dishonor.(d) A man merely guaranteeing the payment of a bill, but not a party to it, is not discharged by the neglect of the holder to give him notice of dishonor, unless he has been actually prejudiced by such neglect.(e)(l) , And though a man indorse a bill, yet if he also give a bond con- ditioned for its payment, absence of due notice of dishonor is no plea to an action on the bond.(/) (c) " If a person," says Abbott, 0. J., " deliver a bill to another, without indors- ing his own name upon it, he does not subject himself to the obligations of the law merchant ; he cannot be saed on the bill, either by the person to whom be delivers it, or by any other. And, as he does not subject himself to the obligations, we think be is not entitled to the advantages. If the holder of a bill sell it without his own indorsement, he is, generally speaking, liable to no action in respect of the bill. If he deliver it without his inflorsement upon any other consideration, antecedent or concomitant, the nature of the transaction, and all circumstances regarding the bill, must be inquired into, in order to ascertain whether he is subject to any responsi- bility. If the bill be delivered, and received as an absolute discharge, he will not be liable ; if otherwise, he may be. The mere fact of receiving such a bill does not show it was received in discharge." Van Wart v. WooUey, 3 B. & C. 445 (10 E. C. L. R.). (d) There is great confusion in the cases on this subject, but the authorities are canvassed in the judgment of Mr. Justice Coleridge, in Turner v. Stones, 1 Dowl. & L. 131. That learned Judge says, "I think the obligation on th6 holder is to give notice promptly to the party from whom he receives the note." (e) Warrington v. Furbor, 8 East; 242 ; 6 Bsp. 89, s. 0. ; Philips v. Astling, 2 Taunt. 206 ; Swinyard v. Bowes, 5 M. & S. 62 ; Holbrow v. Wilkins, 1 B. & C. 10 (8 E. C. L. R.); 2 D. & Ry. 59, s, 0.; Van Wart v. WooUey, 3 B, & C. 439 (10 E. C. L. R.) I 5 Dowl. & R. 374 ; M. & M. 220, a. o. ; Walton T. Mascall, 13 M. & W. 72 ; Hitchcock V. Humfrey, 5 M. & Gr. 559 (44 B. 0. L. R.). (/) Murray v. King, 5 B. & Aid. 165 (7 E. C.L. K.). (1) Donley v. Camp, 22 Alabama, 659. 440 OF NOTICE 0]? DISHONOR. *Let us now inquire, seventhly, what are the consequences L -"of neglect to give due notice. The law presumes that, if the drawer has not had due notice, he is injured, because, otherwise, he might have immediately withdrawn his effects from the hands of the drawee, and that, if the indorser has not had timely notice, the remedy against the parties liable to him is rendered more preca- rious. The consequence, therefore, of neglect of notice is, that the party to whom it should have been given is discharged from all liability, whether on the bill or on the consideration for which the bill was paid.(^)(l) The old doctrine on this subject was, that it lay on the defendant to prove that he had been, injured by the want of notice ;{h) but it is now settled £hat the want of notice is a complete defence, and that evidence tending to show the defendant was not prejudiced by the neglect is inadmissible, except in an action against the drawer who had no effects in the hands of the drawee.(i) And if a man who is discharged for want of notice, nevertheless, pays the hill, he cannot recover against prior parties. But where an agent drew a bill on his principal for goods bought by the agent for the princi- pal, and the bill was dishonored, of which the agent had no notice, but the agent, being afterwards arrested on the bill, paid it, and sued his principal on the contract of indemnity, which the law im- plies in favor of the agent in such cases ; it was held, that the agent's not having insisted on the absence of notice as a defence to the action against himself, did not preclude him from recovering the amount of the bill against his principal. (A;) But eighthly, and lastly, there are cases in which notice is ex- cused or waived. Notice may be dispensed with and excused by a prior agreement {g) Bridges v. Berry, 3 Taunt. 130. (A) Mogadara v. Holt, 1 Show. Ul ; 12 Mod. 15, s. o. (i) Dennis t. Morrice, 3 Esp. 158 ; Hill v. Heap, D. & R., N. P. C. 59. (k) Huntley v. Sanderson, 1 C. & M. i6l ; 3 Tyr. 469, s. o. (1) Where the drawer of a check not paid on presentation has been injured for want of notice of such non-payment, he is not thereby discharged from the pay- ment of the whole checlt, but only to the extent of the actual injury he has sus- tained by the want of notice. Pack v. Thomas, 13 Smedes & Marshall, 11. See ante, the difference between checks and other negotiable paper. OP NOTICE OF DISHONOR. 441 on the part of the party otherwise entitled to it, that it shall not be necessary to give him notice. Thus, where the drawer stated to the holder a few days before the bill became due that he would call and see if the bill had been paid by the acceptor, it was held that he had dispensed with notice.(Z) *Where the drawer has countermanded payment, notice r^gsfil of dishonor to him is dispensed with, although it may be '- still necessary to present, (m) If the drawer had no effects at any time during the currency of the bills in the hands of the acceptor, and will have no remedy against the acceptor or any other person if he be obliged to pay the bill, he cannot, in general, have been prejudiced by want of notice, and, therefore, cannot set that up as a defence.(w)(l) But this decision, substituting knowledge for notice, has been much regretted. " I have always thought," says Abbott, C. J., " that it would have been better never to have considered knowledge as equivalent to notice : I cannot consent to carry the law one step further."(o) Therefore it has been held, that, in order to be liable without notice, the drawer must have had no remedy against the acceptor or any other person. Hence, if a bill be drawn for the accommodation, not of the drawer, but of the acceptor, as the drawer might sue the acceptor, he is entitled to notice. (p) And Q) Phipson v. Kneller, 4 Camp. 285; 1 Stark. 116 (2 E. C. L. R.), s. c; see Burgh V. Legge, 5 M. & W. 418; and Brett T. Levett, 13 Bast, 21'4; bat see Bx parte Bignold, 1 Deac. 728; Murray v. King, 6 B. & Aid. 165 (7 E. C. L. R.) ; Soward v. Palmer, 2 Moore, 274; 8 Taunt. 277 (4 E. C. L. R.), S. 0. (m) Hill T. Heap, D. & B., N. P. C. 57 ; Prideaux y. Collier, 2 Stark. 57 (3 E. C. L. R.). (n) Bickerdike v. Bollman, 1. T. B. 406 ; see Lafitte v. Slatter, post. (0) Cory T. Scott, 3 B. & Aid. 619 (5 E 0. L. B.) ; Carter v. Flower, 16 M. & W. 749. (jo) Ex parte Heath, 2 Ves. & B. 240; 2 Rose, 141, s c; Cory v. Scott, 3 B. & Aid. 619 (5 E. C. h. R.); Bayley, 294, 5th ed.; Sleigh v. Sleigh, 19 L. J., Exch. 345 ; 5 Exch. 514, s. c. (1) If the drawer has no funds in the drawee's hands, the payee may sue imme- diately after non-acceptance without giving notice. Baker t. Gallagher, 1 Wash- ington C; C. 461 ; Read v. Wilkinson, 2 Washington C. C. 514; Tarver v. Nance, 5 Alabama, 712 ; Hubble v. Fogartie, 3 Richardson, 413. Want of funds is no ex- cuse for want of notice. Harwood v. Jarvis, 5 Sneed, 375. As to notice when the drawee has no effects of the drawer in his hands, and is not bound to accept. Dur- n!m V. Hendrick, 4 Texas, 495 ; Cole v. Wintercost, 12 Texas, 118. 442 OP NOTICE OE DISHONOR. if the drawer in such a case chooses to pay without notice, he can,- not sue the acceptor for money paid to his use, although he may sue on the bill.(g') And, where, a bill was drawn for the accommo- dation of an indorsee,, and neither such indorsee nor the drawer had any effects in the hands of the acceptor, it was held that a subsequent , indorsee, in order to recover against the drawer, was bound to give him notice, for the drawer had a remedy over against ,- „ _ his immediate indorsee. (r)(l) So, it is no excuse *for r 2871 \ /\ / ' •- ^ neglect of notice to an indorser, that the drawer had no (?) Sleigh V. Slejgh,; 19 L. J., Exch. 345 ; 5 Exch. 514, s. o. , (r) Norton v. Pickering, 8 B & C. 610 (16 E. C. L. R.) ; 3 Man. & E. 23 ; Dans. & L. 210, s. 0. ; Cory v. Scott, 3 B. & Aid. 619 (5 E. C. L. R.), 'overruling Walwyn v. , Quintin, I B. & P. 652 ; and see Brown t. Maffey, 15 East, 216 ; Ex parte Heath, 2 Ves. & B. 249; 2 Rose, 141, s. o. It is held in America that the indorser of a promissory note for the accommoda- tion of the drawer, is entitled to strict notice. The maker of a note for the accommodation of the payee is not released by the failure to protest the note and give him notice, though It is known to the holder that be is an accommodation maker. An accommodation drawer of a bill of exchange is entitled to notice of its dis- honor, although he had no funds in the hands of the drawee. An indorser is chargeable without notice, if he indorsed for the drawer's accom- modation only, and bad ho expectation that the drawee would pay. See Byles on Bills, 3rd American ed. p. 341. And the indorser is entitled to notice, although the bill was drawn and accepted, and indorsed by him for the purpose of raising funds for a company in which he as well as the holder was a shareholder. Haltass t. Siddle, 6 C. B., N. S. 494 (95 E. 0. L. E.). (1 ) The indorser of a promissory note for the accommodation of the drawer, is entitled to strict notice. French r. Bank of Columbia, 4 Cranch, 141 ; Bogg v. Keil, 1 Missouri, 743 ; Holland v. Turver, 10 Conn. 308 ; Rea v. Dorrance, 6 Shepl. 137. The maker of a note for the accommodation of the payee is not released by the failure to protest the note and give him notice ; though it is known to the holder that he is an accommodation maker. Hansbrough v. Gray, 3 Gratt. 356 ; Lewis v. Hanchman, 2 Barr, 416. An accommodation drawer of a bill of exchange is en- titled to notice of its dishonor, although he had no funds in the bands of the drawee. Sherrod v. Rhodes, 5 Alabama, 683 ; Reid v. Morrison, 2 Watts & Serg. 401; Evans v. Norris, 1 Alabama, 511; Shirley v. Fellowes, 9 Porter, 300. An indorser is chargeable without notice, if he indorsed for the drawer's accommoda- tion only, and had no expectation that the drawee would pay. Farmers' Bank t. Van Meter, 4 Rand. 653. No notice of non-payment of a note is required from an accommodation indorser to those for whose accommodation he indorsed,: in order to hold them liable to him. Fulton v. Maccracken, 18 Maryland, 528. Demand and notice are not necessary to fix drawer for whose use bill was accepted and indorsed. Barbavoux v. Waters, 3 Metcalf (Ky.), 304. OF NOTICE 01' DISHONOR. 443 effects in the acceptor's hands. . " That circumstance," says Lord Kenyon, " will not avail the plaintifiF, — the rule extends only to actions brought against the drawer; the indorser is in all cases entitled to notice, for he has no concern with the accounts between the drawer and the drawee, "(s) Nor will the absence of eifects in the hands of the maker of a fromissory note be any excuse for want of notice to the indorser, at all events unless the indorser be the person who is to pay, and who has no remedy over against any one ;{t) nor will it snflSce to allege that he has not been damnified by the abscence of notice. An intimation from the drawee that he cannot meet the bill but that the drawer must take it up, will not relieve the holder from the necessity of giving the drawer notice, (m) But if the acceptor give the drawer money for that purpose, such gum is recoverable from the drawer by the holder, as money paid to his use. (a;) Though the acceptor, at the time of dishonor, have no effects of the drawer in his hands, yet, if he ever had any after the drawing of the bill, or if, without effects, the drawer had any reasonable ground for expecting that the bill would be honored, he is entitled to notice. " The case of Bicker- dike V. Bollman," says Lord Ellenborough, "went upon the ground, that the drawer had no effects in the hands of the drawee at the time of the bill drawn, and the other cases followed on the same ground. But no case has gone the length of extending the ex- emption further to cases where the drawee had effects of the drawer in his hands at the time of the bill drawn, though the balance might vary afterwards, and be turned into the opposite scaler When there are no effects of the drawer in the hands of. the drawee at the time when the bill is drawn, the drawer must know that he is drawing on accommodation ; but, if he have effects at the time, it would be very dangerous and inconvenient, merely on account of the shifting of a balance, to hold notice not to *be ne- r^noo-i cessary. It would be introducing a number of collateral issues in every case upon a bill of exchange, to examine how the account stood between the drawer and the drawee, from the time («) Wilks T. Jacks, Peake, 202, But if the indorser have had funds put into his hands by the drawer, out of which he is to pay the bill, notice to the indorser is unnecessary. Corney r. Mendez da Oosta, 1 Bsp. 302 ; Carter v. Flower, 16 M. & W. TSl. (0 Carter v. Flower, 16 M. & W. 751. («) Stables v. O'Kines, 1 Esp. 332. [x) Baker t. Birch, 3 Camp. 107. 444 OP NOTICE OF DISHONOR. the bill was drawn down to the time it was dishonored."(^) Where the drawer had goods in the hands of drawees to the amount of 15001. but owed them 10,000Z., and the drawees had appropriated the goods to the satisfaction of the debt, it was held, that notice of dishonor to the drawer was still essential. Lord Ellenborough observing, — " If a man draws upon a house with whom he has no account, he knows that the bill will not be accepted ; he can suffer no injury for want of notice of its dishonor : and, therefore, he is not entitled to such notice. But the case is quite otherwise where the drawer has a fluctuating balance in the hands of the drawee. There notice is peculiarly requisite. Without this, how can the drawer know that credit has been refused him, and that his bill had been dishonored ? It is said here, that the efiFects in the hands of the drawees were all appropriated to discharge their own debt ; but that appropriation should appear by writing, (s) and the de- fendant should be a party to it. "(a) And, in general, though the drawer had no effects in the hands of the drawee, yet, if he had any reasonable expectation that the bill would be honored, he is entitled to notice of dishonor, as if he have consigned goods to the drawee, though, in fact, they never came to hand, or have accepted bills for him. (6) So where R., being indebted to the drawer, represented to him that A. owed him money, and the drawer in consequence drew a bill on A., which A. accepted, but' did not pay, it was held, that the drawer was en- titled to notice of dishonor ; for he had reason to expect either that El. would take up or that the acceptor would pay the bill, and might by want of notice be induced to relax in his endeavors to procure payment of the debt owing by E.(e) *But the '- -I drawer of a bill who has no effects in the hands of the (y) Orr v. Maginnis, T'East, 359; 2 Smith, 328, s. c. ; Legge v. Thorpe, 12 East, 171 ; Brown v. Maifey, 15 Bast, 216 ; Hammond v. Dufreue, 3 Gamp. 145 ; Thackray V. Blackett, 3 Camp. 164. (z) Qucere, as to the neoesaity of a writing. ' (ffl) Blackhan v. Doren, 2 Camp. 503. (6) Legge t. Thorpe, 12 East, 171 ; Rucker v. Hiller, 16 East, 43 ; 3 Oamp. 217, s. 0. ; Spooner v. Gardiner, 1 R. & M. 84 ; Walwyn v. St. Quintin, 1 Bos. & Pul- 652 ; Ex parte Heath, 2 Ves. & B. 240. (c) Layfitte t. Slatter, 6 Bing. 623 (19 E. 0. L. R.); 4 M. &. P. 457, s. o. The burthen of proving that the defendant has been injured by receiving no notice, where that is alleged, but where it is proved that he had no funds in the hands of the acceptor, lies on the defendant. Fitzgerald v. Williams, 6 Bing. N. 0. 68 (37 E. 0. L. R.); 8 Scott, 271,6. 0. OF NOTICE OF DISHONOK. 445 drawee, except that he has supplied him with goods on credit, which credit does not expire till long after the bill becomes due, is not entitled to notice, for the goods are not such as can properly be set against the drawing, nor can there be any reasonable expec- tation that the bill will be paid till the expiration of the credit.(c?)(l) (d) Claridge v. Dalton, 4 M. & Sel. 226. As to the form of the allegation ia pleading, see Thomas v. Fenton, 16' L. J., Q. B. 362 ; 5 D. & L. 28, s. o. It is held in America that if the drawer had no effects in the hands of the drawee at the date of the bill, and no reasonable ground to expect it would be honored, he is chargeable without notice. The drawer is entitled to notice of the dishonor of a bill, if he had reasonable ground to believe it would be honored, although he had no funds in the drawee's hands. Though the drawer has no funds in the hands of the drawee, and no ground to expect the bill to be honored, ^et the indorser is entitled to notice in all cases, un- less he has received funds from the drawer to talce up the bill. An indorser of a promissory note, who, before the note falls due, takes an assignment of all the pro- perty and estate of the maker for the express purpose of meeting his responsibili- ties, is not entitled to the usual notice of non-payment. The mere taking of security by an indorser from the maker of the note does not dispense with a demand and notice, unless sufficient funds have come into his hands to satisfy \he note, or all the property of the maker has been transferred to the in- dorser. The burthen of proof is on the holder of a bill to show that the drawer had no funds in the drawee's hands in order to excuse want of notice. Where the indorser has discharged the maker of a note from liability by a settle- ment and release, a notice of non-payment would be of no use to him, and therefore he is not entitled to it. See the authorities in Byles on Bills, 4th American ed. (1) If the drawer had no effects in the hands of the drawee at the date of the bill, and no reasonable ground to expect it would be honored, he is chargeable without notice. Hopkirk v. Page, 2 Brockenb. 20 ; Eichelberger v. Finley, 1 Harris & Johns. 381; Warder v. Tucker, 7 Mass. 452; Valk v. Simmons, 4 Mason, 113; Cathell V. Goodwin, 1 Har. & Gill, 468 ; Hoffman v. Smith, 1 Gaines, 157 ; Savage V. Merle, 5 Pick. 88 ; Armstrong v. Gay, 1 Stewart, 175; DoUfus v. Frosch, 1 Deuio, 367; Foard v. Womack, 2 Alabama, 368 ; Kinsley v. Robinson, 21 Pick. 327 ; Cook V. Martin, 5 Smedes & Marshall, 379 ; Spear v. Atkinson, 1 Iredtsll, 262 ; Rhett v. Poe, 2 Howard U. S. 457. In the matter of Brown, 2 Story, 502 ; Stewart v. Desha, 11. Alabama, 844; Younge v. Ruff, 3 Strobhart, 311; Richie v. M'Coy, 13 Smedes & Marshall, 541. The drawer is entitled to notice of the dishonor of a bill, if he had reasonable ground to believe it would be honored, though he had no funds in the drawee's hands. Austin v. Rodman, 1 Hawks, 19a; Stanton v. Blossom, 14 Mass. 116 ; French's Ex. v. Bank of Columbia, 4 Cranch, 141 ; Robinson v. Ames, 20 Johns. 146 ; Grosvenor v. Stone, 8 Pick. 83 ; Campbell v. Pettengill, 7 Green- leaf, 126; HUl v.Norris, 2 Stewart & Porter, 114. Though the drawer has no funds in the hands of the drawee and no ground to expect the bill to be honored, yet the indorser is entitled to notice in all cases, unless he has received funds from the drawer to take up the bill. Scarborough v. Harris, 1 Bay, 178 ; Barton v. Baker, 1 446 OF NOTICE OF DISHONOR. If the drawer of a bill make it payable at his own house, this is evidence to go to the jury that it is a bill drawn for the accommo- dation of the drawer himself, of the dishonor of which it is not necessary to apprise him. " I cannot understand," says Lord Tenterden, " why the drawer should with his own hand make the bill payable at his own house, unless he was to provide payment of it when at maturity, "(e) Ignorance of a party's residence will excuse neglect to give notice of dishonor, so long as that ignorance continues without neglecting to use the ordinary means for acquiring information. " It would be very hard," observes Lord Ellenborough," when the r*2Q01 ^°l*i^*' °f ^ ^i^^ '^°^® "°* J^now *where the indorser is to be found, if he lost his remedy by not communicating imme- diate notice of the dishonor of the bill, and I think the law lays down no such rigid rule. The holder must not allow himself to remain in a state of passive and contented ignorance : but^ if he uses rea- (e) Sharp v. Bailey, 9 B. & 0. 44 (17 E. 0. L. R.) ; 4 M. & B. 4, s. o. Qiueri, whether notice of dishonor be necessary, where the drawer dies before maturity, and an indorser is sued who is the drawer's executor. See Gaunt v. Thompson^ 18 L. J., 0. P. 127 ; 7 0. B. 400 (62 B. 0. L. B.), S. 0. Serg. & Bawle, 334 ■ Warder v. Tucker, 7 Mass. 452 ; Fotheringham v. Price's Ex., 1 Bay, 291 ; Denniston v. Imbrie, 3 Wash. C. C. 401 ; BamdnloUday v. Darienx, 4 Ibid. 61 ; Walker v. Walker, 2 English, 542. An indorser of a promissory note, who before the note falls due, takes an assignment of all the property and estate of the maker, for the express purpose of meeting his responsibilities, is not entitled to the usual notice of non-payment. Mechanics' Bank v. Griswold, 7 Wend. 165 ; Barton T. Baker, 1 Serg. & Bawle, 334 ; Ooddington v. Davis, 3 Denio, 16, 610 ; Duvall V. Farmers' Bank, 9 Gill & Johns. 31. The mere taking of security by an indorser from the maker of the note does not dispense with a demand and notice, unless sufficient funds have come into his hands to satisfy the note, or all the property of the maker has been transferred to the indorser. Spencer t. Harrey, 17 Wendell, 489; Marine Bank v. Smith, 6 Shepl. 99 ; Cramer v. Perry, 17 Pick. 332; Woodman y. Eastman, 10 N. Hamp. 359 ; Durham v. Price, 5 Yerg. 300; Watkins v. Crouch, 5 Leigh, 522 ; Watt v. Mitchell, 6 Howard (Miss.) Eep. 131 ; Barrett t. Charleston Bank, 2 McMuUan, 191 ; Kramer v. Sanford, 4 Watts & Serg. 328 ; Bur- rows T. Hannegan, 1 McLean, 309; Stephenson v. Primrose, 8 Porter, 155; Kyle'T. Green, 14 Ohio, 495 ; Denny v. Palmer, 5 Iredell, 610 ; Develing v. Ferris, 18 Ohio, 170. The burden of proof is on the holder of a bill, to show that the drawer had no funds in the drawee's hands in order to excuse want of notice. Baxter v. Graves, 2 Marshall, 152 ; Balston v. Bullits, 3 Bibb, 261 ; Thompson v. Stewart, 3 Conn. 172. Where the indorser has discharged the maker of a note from liability by a settlement and release, a notice of non-payment would be of no use to him, and therefore he is not entitled to it. Burke v. McKay, 2 Howard U. S. Bep. 66. OF NOTICE OF DISHONOR. 447 sonable diligence to discover the residence of the indorser, I con- ceive that notice given as soon as this is discovered, is due notice of the dishonor of the bill, within the usage and the custom of merchants. "(/) Where the holder, in order to discover the resi- dence of the indorser, had merely made inquiries at a certain house where the bill was made payable, Lord EUenborough said, " Igno- rance of the indorser's residence may excuse the want of due notice, but the party must show that he has used reasonable diligence to find it out. Has he done so here? How should it be expected that the requisite information should have been obtained where the bill was payable ? Inquiries might have been made of the other persons whose names appeared on the bill, and application might have been made to persons of the same name with the defendant, whose addresses are set down in the directory. "(5') Due diligence has, however, been held to be a question of fact.(A) After the residence of the party is discovered, the holder has the same time to give notice as he would have had in the first instance. («')(!) (/) Bateman t. Joseph, 2 Camp. 463 ; 12 East, 433, s. 0. ; Browning v. Kinnear, G6w, 81 ; Harrison t. Fitzhenry, 3 Esp. 240 ; Baldwin r. Richardson, 1 B. &C. 245 (8 B. 0. L. R.) ; 2 D. & R. 285, s. 0. In this last case the traveller of a tradesman received in the course of business a promissory note, which was afterwards dishon- ored. The principal not knowing the address of the next preceding indorser, wrote to his traveller to inquire into it, and several days elapsed before he received an answer. He then gave notice, and it was held sufficient. See Chapcott v. Curlewis, 2 Moo. & Rob. 484. (g) Beveridge v. Burgls, 3 Camp. 263. (A) Bateman v. Joseph, 12 East, 433 ; 2 Camp. 463, s. c. ; Hilton v. Shepherd, 6 East, 14, n. ; Siggers v. Browne, 1 M. & Rob. 520 ; Hewitt v. Thompson, 1 M. & Rob. 543. In these two last cases, the letters containing notice of dishonor had miscarried, and the jury were directed to consider whether the generality or indis- tinctness of the description which the defendant had given of himself in the bill, had led the plaintiff into error. (!) Firth V. Thrush, 8 B. & C. 38T (15 E. C. L. R.) ; 2 M. & R. 359 ; Dans. & L. 151, 8. 0. ; Allen v. Edmundson, 17 L. J., Exch. 291 ; 2 Bxch. 119, s. c. ; Dixon v. Johnson, 1 Jur., N. S. 70. (1) Where the holder of a bill of exchange after the exercise of due diligence to ascertain the residence of the indorser, sends him a notice of the dishonor of the bill, and afterwards discovers that he was not rightly informed and ascertains the true residence, it is not necessary for him to send another notice. Lambert v. Ghi- selin, 9 Howard, U. S. 552. What is diligence? see Shepard v. Citizens' Ins. Co., 8 Missouri, 272 ; Planters' Bank v. Bradford, 4 Humphrey, 39 ; Brener v. Wightman, 7 Watts & Serg. 264 ; Rhett v. Poe, 2 Howard, U. S. 157 ; Carroll v. Upton, 2 Sandf. Snp. Ct. Rep. 171 ; Eawdon V. Eedfield, Ibid. 178 ; Carroll v. Upton, 3 Comstock, 272 ; Lambert v. Ghiselin, 9 448 OF NOTICE OF DISHONOR. Nemo ad impoasibile tenetur; and, therefore, it should seem, on general principles, that the death or dangerous illness of the holder, or his agent, or other accident not attributable to the holder's naq-t-] negligence, rendering notice *impossible, may excuse it.[k) But, where an indorser left home on account of the danger- ous illness of his wife, at a distance, and a letter containing notice of dishonor of a bill lay unopened at his shop during his absence, till after the proper time for giving his indorser notice, Lord Ellen- borough held, that these circumstances afforded no excuse for the delay.(Z)(l) Where a bill is drawn by several persons upon one of themselves, (i) Potii. 144 ; Pardessus du Contrat de Oha,nge, 426 ; Thompson, 483, 548. (I) Turner v. Leech, Chit.' 9th ed. 330. Howard U. S. 552 ; Johnson v. Lewis, 1 Dana, 182 ; Davis v. Herrick, 6 Ham, 65; Bank of Columbia v. Lawrence, 1 Peters, 578 ; Van Hosen v. Van Alstyen, 3 Wend. 75 I Sice V. Cunningham, 1 Oowen, 397 f Nash v. Harrington, 1 Aiken, 39; Bro- naugh V. Scott, 5 Call, 78 ; Harris v. Robinson, 4 Howard, U. S. Rep. 336 ; Godley v. Goodlove, 6 Smedes & Marshall, 255 ; Pierce v. Pendar, 5 Mete. 352 ; Wheeler V. Field, 6 Mete. 290 ; Thorne v. Bice, 3 Shepl. 263 ; Spencer v. Bank, 3 Hill, 520 ; Winans v. Davis, 3 Harrison, 276; Hoopes v. Newman, 2 Smedes & Marsh. 71; Godley v. Goodloe, 6 Ibid. 255; Remer v. Downer, 23 Wend. 620; 25 Ibid. 277; Belden v. Lamb, 17 Conn. 441 ; Haly v. Brown, 5 Barr, 178 ; Ashley v. Gunton, 15 Arkansas, 415 ; Porter v. Judson, 1 Gray, ^75 ; Moore v. Hardcastle, 11 Maryland, 486; Newberry T. Trowbridge, 4 Michigan, 391 ; Linderman v. Guldin, 10 Casey, 54; Boyd v. City Savings, 15 Grattan, 501 ; Middleton Bank v. Morris, 28 Barbour, 616; Heiss V. Corcoran, 15 Louisiana Annual, 694 ; Early v. Preston, 1 Patton 4 Heath, 228 ; Adams v. Lelaud, 5 Bosworth, 411 ; Brighton Bank v. Philbrick, 40 New Hampshire, 506 ; Blodgelt v. Durgin, 32 Vermont, 361 ; Libby v. Adams, 32 Barbour, 542 ; Davenport v. Gilbert, 4 Boswell, 532. The holder is presumed to know the residence of his immediate indorser, and is bound to inform the notary or agent employed to give notice. Lawrence v. Miller, 16 New York, 235. Due dili- gence of notary is not sufficient if the holder knew. Randall v. Smith, 34 Barbour, 452. It is the duty of the holder to inform the notary of the residence of the maker and indorser ; and if unknown to the bolder, he must inquire of those whose names are on the bill as to the residence he does not know ; and if there are none such on the note he must use due diligence to ascertain it. Smith v. Fisher, 12 Harris, 222. What is due diligence in giving notice is a question of law when the facts are ad- mitted ; when the fact^are disputed, the court should give hypothetical instructions, leaving the facts to the jury. Linville v. Welsh, 29 Missouri, 203 ; Wyman v. Adams, 12 Cushing, 210. (1) A state of war between the country of the drawer and that of the drawee will excuse notice, but it must be given within a reasonable time after peace. Hppkirk V. Page, 2 Brock. 20. The blockade of a city is a sufficient excuse for not sending notice. House v. Adams & Co., 12 Wright, 261. OF NOTICE OF DISHONOR, 449 since the acceptor is likewise a drawer, notice of dishonor is super- fluous, as the dishonoi' must be known to one of them, and the knowledge of one is the knowledge of all.(»n)(l) The death, bankruptcy, or insolvency of the drawee, however notorious, constitutes no excuse for neglect of notice. (n)(2) Nor an agreement or understanding between the parties, that the instru- ment shall not be payable till after a certain event, (o) Notice of dishonor need not be given if the bill be on an insuffi- cient stamp. (p) Nor to the indorser of a promissory note not negotiable. (g')(3) (m) Porthouse v. Parker, 1 Camp. 82. But in case of fraud a different rule would preTail. Bignold v. Waterhouse, 1 M. & Sel. 259. And it may be doubtful how far this rule would hold in tine case of a joint-stock company. (n) Bussel v. Langstaffe, Doug. 497; Bsdaile v. Sowerby, 11 Bast, 114; Boultbee V. Stubbs, 18 Ves. 21 ; but see 3 Bro. 0. 0. 1. (0) Free v. Hawkins, 8 Taunt. 92 (4 B. C. L. R.) ; 1 Moore, 28, s. o. {p) Cundy v. Marriott, 1 B. & Ad. 696 (20 E. C. L. R.). (?) Plimley t. Westley, 2 Bing. N. 0. 249 (29 B. C. L. R.) ; 2 Scott, 423 ; 1 Hodges, 324, s. c. (1) If the drawer be a partner of the firm on which the bill is drawn, the holder need not prove notice to. him of its dishonor. Gowan v. Jackson, 20 Johns. 176; see Dwight v. Scavil, 2 Conn. 654. Where copartners purchase goods together and give a note therefor, with one of them as maker and the other as indorser, the laltter is not liable on his indorsement, unless he be duly notified of the dishonor of the note. Foland T.Boyd, 11 Harris, 476; Morris t. Husson, 4.Sandf. 93. "This is not like the case where a note has copartners for the makers, and some of them for indorsers, and where of course the knowledge of the dishonor by the makers is chargeable on them as indorsers." Lowry, C. J. (2) The insolfenoy and absconding of the drawee are no excuse for not giving notice to the indorser. May v. Coffin, 4 Mass. 341 ; Barton v. Baker, 1 Serg. & Rawle, 334; Gibbs v. Cannon, 9 Serg. & Rawle, 201 ; Hunt v. Wadleigh, 13 Shepl. 271; and see McClellan v. Clark, 2 Brevard, 106; Kiddell v. Ford, 3 Ibid. 178; Lawrence v. Langley, 14 N. Hamp. 70. (3) The indorsement of a note not negotiable is a collateral and not an original undertaking. If by the payee he will be holden as indorser, but if by a person not a party to the note, as guarantor, but in both cases demand and notice is necessary to hold the indorser. Parker v. Riddle, 11 Ohio, 102. If a note is indorsed, how- ever long a time after it becomes due, the indorsee is bound to prove a demand and notice in an action against the indorser. Berry v. Robinson, 9 Johns. 121 ; Stack- man V. Riley, 2 McCord, 398; AUwood v. Haseldon, 2 Bailey, 457: Poole v. JoUe- 3on, 1 McCord, 199; Rugeby v. Davidson, 2 Rep. Con. Ci. 33; Dwight v. Kmerson, 29 450 OF NOTICE OF DISHONOR. The consequences of neglect of notice will be waived by a sub- sequent promise to pay. And a payment of part, or an acknow- ledgment of liability,(r) though after action brought,(«) will be evidence of notice. (i) r*9q9n *It makes no difference that such promise, payment^ or '-"'*'-' acknowledgment, were made under a misapprehension of the law, for every man must be taken to know the law ;(m) otherwise, a pre- mium is held out to ignorance, and there is no telling to what extent this excuse might be carried.(a;) But, if the promise or acknowledg- ment be made under a misapprehension oifact, as, if the bill have been presented for acceptance, and acceptance have been refused, a promise to pay, in ignorance of that circumstance, is no waiver of the consequences of laehes.{y) But a promise to pay will entirely dispense with proof of presentment or notice, and will throw on the defendant the double burthen of proving laches, and that be was ignorant of it.(s) Where it is only as to part of the sum, the plaintiff can only avail himself of it as a waiver, pro tanto. A drawer of a bill for 200Z., who had not received due notice of / (r) Vaughan v. Fuller, 2 Stra. 1246 ; Harford v. Wilson, 1 Taunt. 12; Lundyv. Kobertson, 1 East, 231 ; 3 Smith, 225, s. o. ; Brett v. Levett, 13 East, 213; Wood V. Brown, 1 Stark. 21T (2 E. C. L. R.) ; Hopes v. Alder, 6 East, 16, n. ; Dennis t. Morris, 3 Esp. 158 ; Rogers v. Stephens, 2 T. B. 713 ; Dixon v. Elliott, 5 C. & P. 437 (24 E 0. L. K.) ; Margetson v. Aitken, 3 C. & P. 338 (14 E. 0. L. R.) ; Dans. & L. 157, s. c. ; Lecaan v. Kirkman, 6 Jnr., N. S. 17. (a) Hopley v. Dufresne, 15 East, 275. [t) Many of the cases, cited below, fail in drawing the proper distinction between the effect of a promise, as a waiver of notice, and its effect as evidence of notice. (a) Or, more correctly speaking, ignorance of the law cannot excuse. (a:) Bilbie v. Lumley, 2 East, 469. , (y) Goodall v. DoUey, 1 T. R. 712; Blesard v. Hurst, 5 Burr. 2672; Williams v. Banholomew, 1 B. & P. 326; Stevens t. Lynch, 2 Camp. 333 ; 12 East, 38, s. 0. (2) Taylor v. Jones, 2 Camp. 105 ; Stevens v. Lynch, 12 East, 38 ; 2 Camp. 332, s. 0. See instances of promises held insufficient in Dennis v. Morrice, 3 Esp. 158 ; Cumming v. French, 2 Camp. 106, n. ; and see Rouse v. Redwoad, 1 Esp. 156; Standage v. Creighton, 5 C. & P. 406 (24 E. C. L. R.) ; and Borradaile v. Lowe, 4 Taunt. 93, where it is said that an indorser can only be rendered liable by an express promise ; and see Pickln v. Graham, 1 Cro. & Mee. 725 ; 3' Tyr. 923, s. 0. 2 N,. Hamp. 159 ; Kennan v. McBae, 3 Stewart & Porter, 249 ; Benton v. Gibson, 1 Hill, S. C. 56 ; Greeley v. Hunt, 8 Shepl. 455; Colt v. Barnard, 18 Pick. 260; Kirk. Patrick v. McCnUough, 3 Humph. 171 ; Kennon v. McRae, 7 Porter, 175; Chadwick V. Jeffers, 1 Richardson, 397 ; Bean v. Arnold, 4 Shepl. 251 ; Williams v. Probst, 10 Watts, 111; Matthews v. Fogg, 1 Richardson, 369; Gray v. Bell, 2 Ibid. 67; 3 Ibid. 71 ; Sanborn-T. Southard, 25 Maine, 409 ; Branch Bank v. Gaffney; 9 Alabama, 153. OP NOTICE OF DISHONOR. 451 dishonor, said, " I do not mean to insist on want of notice, but I am only bound to pay you 70Z." Abbott, C. J. : " Tbe defendant does not say that he will pay the bill, but that he is only bound to pay 101. I think the plaintiff must be satisfied with the 70?. "(a) The acknowledgment or promise may be made by the attorney for the defendant, or by his clerk, who has the management of the case.(5) It need not be made to the plaintiff, but may be made to another party to the bill, or to a stranger, (c) A promise to pay made by the drawer in expectation that a bill will be dishonored, but before it is dishonored, does not dispense with notice ; for it is to be understood as a promise on condition that due notice is given. (cZ) *It seems, however, in some recent cases to have been considered, that a promise to pay is only evidence ■- ^ from which a jury may presume that notice has been received. (e) But that is not so. A promise to pay, if made before the time for giving notice has expired, is a dispensation, if made after that time it is a waiver, independently of any question of actual notice.(/)(l) (0) Fletcher v. Froggatt, 2 C. & P. 569 (12 E. C. L. E.). (i) Standage t. Creighton, 5 0. & P. 406 (24 B. C. L. B.). (c) Potter V. Rayworth, 13 Bast, 417 ; Gunson t. Metz, 1 B. & 0. 193 (8 B. C. L. R.) ; 2D. & Ry. 334^ s. 0. ; Fletcher, v. Froggatt, 2 0. & P. 569 (12 B. C. L. B.). In Rabey v. Gilbert it was held that suffering judgment by default in an actioa at the suit of a second Indorsiee was evidence of notice or of a waiver of notice in an action by the'first indorsee. Rabey v. Gilbert, 30 L. J., Bxch. 171 ; 6 H. & N. 536, s. c. (d) Pickin v. Graham, 1 C. & M. 725 ; 3 Tyr. 923, s. 0. ; and see Prideaux v. Col- lier, 2 Stark. N. P. C. 57 (3 E. 0. L. B.) ; and Baker v. Birch, 3 Camp. 107. (e) Hicks v. The Duke of Beaufort, 4 Bing. N. C. 229 (33 E. 0. L. R.) ; 5 Scott, 598, s. c. ; and see Booth v. Jacobs, 3 Nev. & M. 351 ; Pickin v. Graham, 1 Cro. & Mee. 728 ; 3 Tyr. 923, s. 0. ; but see Lun^ie v. Robertson, 7 East, 231 ; 3 Smith, 225, s. 0. ; Haddock v. Bury, 7 East, 236, a. ; Anson v. Bayley, B. N. P. 276 ; Hop- ley V. Dufresne, 15 East, 275 ; Norris v. Solomonson, 4 Scott, 257 ; where the defendant said he had no intention but to pay the bill, and should not avail himself of the informality of the notice, held evidence to go to the jury of notice. Brom- well V. Bonney, 1 Q. B. 39 (41 E. 0. L. R.). (/) Cordery v. Colville, 32 L. J., 0. P. 211 ; 14 C. B., N. S. 374 (108 E. 0. L. R.), s. 0. Woods V. Dean, 32 L. J., Q. B. 1 ; 3 Best & Smith, 101 (113 E. 0. L. R.), 8. o. (1) When it appears that the holder of negotiable paper has been guilty of laches ' in an action against an indorser or drawer, the holder cannot recover on a subse- quent promise without showing that it was made with full knowledge of the laches ; but where the fact of laches does not appear, a promise after maturity to pay the bill is presumptive proof of demand and notice. Tebbets v. Dpwd, 23 Wendell, 452 OF NOTICE OF DISHONOR. Though a party may waive the consequence of laches, m respect of himself, he cannot do so in respect of antecedent partiee.(g') {g) RoBcow T. Hardy, 12 East, 43 1 ; Turner v. Leach, 4 B.. & Aid. 451 (6 B). 0. L. R.) i Marsh v. Maxwell, 2 Camp. 210, n. ; and see ante, p. 209. 369. A promise made by the drawer to the payee to pay the same, after a legal discharge by want of notice of its dishonor, is, if made with a full knowledge of the facts, binding upon him. Cram v. Sherburne, 2 Shepl. 48 ; Walker v. Walker,' 2 English, 542; Hopkins v. Liswell, 12 Mass. 52; Martin v. lugersoll, 8 Picjs. 1^ Beck T, Thompson, 4 Har. & Johns. 531 ; Ladd v. Kenney, 2 N. Hamp. 340 ; Thorn- ton V. Wynn, 12 Wheat. 183 ; Bobbins v. Pinckhard, 5 Smedes & Marsh. 51 ; Moore V. Tucker, 3 Iredell, 34T ; Gardiner v. Jones, 2 Murp. 429 ; Barkalow t. Johnson, 1 Harrison, 397 ; Farrington v. Brown, 7 N. Hamp. 271 ; Davis v. Gowen, 5 Shepl. 387 ; Baltin v. Betcke, 1 1 Iowa, 204 ; Porter v. Hadenpuy!, 9 Michigan, 11 ; Tabey T. Berly, 26 Illinois, 426 ; Campbell v. Varney, 12 Iowa, 43 ; Blodgett v. Dorgin, 32 Vermont, 361 ; Loose v. Loose, 12 Casey, 538; Golladay v. Bank, 2 Head. 57 ; Lan- drum T. Trowbridge, 2 Metcalfe (Ky.), 281 ; Edwards v. Tandy, 36 New Hamp- shire, 540 ; Sigerson v. Matthews, 2 Howard (S. C), 496. Admission by indorsdr that he had received notice and would have to pay is sufficient. Long v. Crawford, 18 Maryland, 220. A part payment, a promise to pay, or an acknowledgment of liability, by the indorser of a promissory note, after the note becomes due, isprimi facie evidence not only of notice but of presentment. Bank of the TJ. S. v. Lyman, 20 Vermont, 668; Bibb v. Peyton, 11 Smedes & Marshall, 275 ; Ridgway v. Day, 13 Penna. St. Eep. 208. A part payment of a note by the indorser, not explained or qualified by any accompanying circumstances, will be held sufficient evidence of wiiver of notice. But where the payment is made with the money of the maker and by his request, the indorser acta as mere agent of the maker, and the transac- tion is so qualified and explained as to preclude all idea of an actual or intended waiver on the part of the indorser: Whitaker v. Morrison, 1 Branch, 25. A promise in ignorance of the fact that no notice has been given will not be suf- ficient. Grain v. Colwell, 8Johns. 384 ; Jones v. Savage, 6 Wendell, 658 ; Offitv. Vick, Walker, 99 ; Miller v. Hadley, Anthem, 68 ; Fleming Y. McClure, 1 Brevard, 428 ; Hunt v. Wadleigh, 13 Shepl. 271 ; Warder v. Tucker, 7 Mass. 449 ; Freeman V. Boynton, lb. 483 ; Garland v. Salem Bank, 9 lb. 408 ; May v. Coffin, 4 lb. 341 ; Otis V. Hussey, 3 N. Hamp. 346 ; Trimble v. Thorn, 16 Johns. 152 ; Kennon v. McRea, 7 Porter, 175 ; U. S. Bank v. Southard, 2 Harrison, 473 ; Spurlock v. Dnioa Bank, 4 Humph. 336. Whether particular conversations amount to a waiver of notice of refusal to accept, is a question for the jury. Oarmichael v. Pennsylvania Bank, 4 Howard, Miss. 567. If the indorser, after the maturity of the bill, even supposing himself liable to pay the same, takes security from the maker, this will not amount to a waiver of the objection of want of due presentment or notice; but the indorser will be deemed to have taken the security merely contingently in case of his ultimate liability. The Otsego County Bank v. Warren, 18 Barbour, S. C. Rep. 290. An agreement by the drawer and Indorser with the holder before the bill is due, that the holder should take any security that the acceptor could give,' or make any arrangement he might deem proper to receive payment, without afiecting their liabilities, was held not to dispense with demand and notice. Bank v. Spell, 2 Hill, 366 ; Carter v. Burley, 8 N. Hamp. .558 ; Creamer v. Perry, 17 Pick. 332. A OF NOTICE OF DISHONOR, 453 No laohes can be imputed to the Crown, and, therefore, if a bill be seized under an extent before it is due, the neglect of the oflScer of the Crown to give notice of the dishonor will not discharge the drawer or indorsers.(A) . A prior dispensation with notice, as absence of effects, must be specially alleged in the declaration. («') So must the impossibility of giving notice, or any other excuse for not giving it.(^) And a subsequent promise, when used as a waiver of notice, must also be specially pleaded. (Z) But a subsequent promise to pay, when used as evidence of the fact of notice, need' not. (m) After the bill is due, a promise to pay, or a part payment,(w) or (A) West on Extents, 2S-9. (i) Cory Y. Scott, 3 B. & Aid. 624 (5 B. C. L. R.) ; Burgh v. Legge, 5 M. & W. 418. (A) Allen v. Edmundson, 11 L. J., Exch. 291 ; 2 Exeh. 719, s. 0. (ly Cordery v. Colville, ubi sup. (m) Lundie t. Robertson, 7 East, 231 ; Gibbon v. Coggon, 2 Camp. 188. See post, Chapter on Pleading. (re) Horford t. Wilson, 1 Taunt. 12. declaration by an indorser to a third person that he would pay the note without suit is no waiver of demand and notice. Allwood v. Haseldon, 2 Bailey, 457 ; see Robbins v. rtnchhard, 5 Smedes & Marshall, 51. A waiver of notice of a demand does not dispense with the demand itself. Backus v. Shiphard, 11 Wend. 629; Buchanan v. Marshall, 22 Vermont, 561 ; Drinkwater T. Tibbits, 5 Shepl. 16. A waiver of protest held to be a waiver of demand and notice. Coddington T Davis, 1 Comstock, 186; see Wall v. Bry, I Louisiana Ann. Rep. 312 ; Scott v. Greer, 10 Barr, 103. A waiver of protest by au indorser is not a waiver of notice. Ball v. Greaud, 14 Louisiana Annual, 305. See on the subject of waiver of demand and notice, Russell v. Cronkhite, 32 Barbour, 282 ; Power v. Mitchell, 7 Wisconsin, 161; Edwa'tds T. Tandy, 36 New Hampshire, 540; Amoskeag Bank v. Moore, 37 Ibid. 539 ; Byram v. Hunter, 36 Maine, 217. The clearest evidence is necessary to show a waiver of demand and notice. Oswego Bank v. Kuower, Hill & Denio, 122. Part payment by one joint indorser with a full knowledge of all the facts is a waiver of the want of due notice, the other being notified. Sherer v. Eastern Bank, 9 Casey, 134. By indorsing the note " A. C. accountable," defendant waived demand and notice. Furbear v. Oaverly, 42 New Hampshire, 74. An indorser, over whose name is written " without demand or notice,'' is holden as an original promissor. Lowell v. Gage, 38 Maine, 35. The indorser of a note does not waive demand and notice by taking a mortgage to secure his liability. Seaoord v. Miller, 3 Kernan, 55. After the indorser has been fixed by demand, protest, and notice, mere forbearance of the holder to bring his action will not discharge an indorser. Ashley v. Gunton, 15 Arkansas, 415. When an indorser of a note took wrongful possession of the note, he was held not entitled to notice. . Havens v. Talbott, 11 Indiana, 323. 454 OF INTEREST. the offer of it,(o) or any admission of liability,(p) whether before or after the period for giving notice *has expired, is frimd [*294] facie eyidence of notice ; but though there be no evidence to repel the inference, the jury are not hound to draw it.(g') A letter from the defendant, containing no promise of payment, but merely an ambiguous allusion to the bill being dishonored, was held sufficient to warrant the jury in finding that the defendant had received due notice of dishonor. (»•) And the sending a person by the defendant, the drawer, to a remote indorsee two days after the bill had become due, to inform him that he, the drawer, had been defrauded of the bill, and^^ that he should defend any aotioH upon it, was left by Lord Tenterden to the jury as evidence to prove notice of dishonor.(s) And a statement by the defendant that he should pay the bill, and not avail himself of the inform- ality of the notice, has been held to be evidence of due notice.(t) And a conditional promise to pay, although the condition be, not complied with, i§ still evidence. (m) Notice to produce a notice of dishonor is not necessary,(a;) [*295] *CH AFTER XXIII. OF INTEREST. THB NATORB OF INTEKBST . . 295 FEOM WHAT TIME IT UnNS WHEN PAY- ABLE BY THE TERMS OP THE INSTRU- MENT 296 PROM WHAT TIME IT RUNS WHEN NOT MADE PATABLE BY THE TERMS OP > THE INSTRUMENT .... 296 PROn WHAT TIME IT BUNS AS AGAINST AN INDOBSER .... 29^ TO WHAT PERIOD IT IS COMPUTED . a»7 WHEN MONEY IS PAID INTO COURT . 297 IN TROVER 297 AFTER A TENDER . . . .298 HOW BANKERS SHOULD OHARQE IT OS CHECKS 298 RECOVERY OP INTEREST AFTER RECEIPT OF THE PRINCIPAL . . . .298 WHEN INTEREST IS NOT RECOVERABLE 298 (o) Dixon V. Elliott, 5 C. & P. 437 (24 E. 0. L. R.). (p) Jackson V. Collins, 17 L. J., Q. B. 142 ; Mills v. Gibson, 16 L. J., 0. P. 249 ; Rabey y. Gilbert, 6 H. & N. 586. ' , (?) Bell y. Prankis, 11 L. J., C. P. 300 ; 4 M. & G. 446 (43 E. 0. L. R), s. o. {r} Boote v. Jacobs, 3 Nev. & M. 351. (s) Wilkins v. Jadis, 1 M00..& R. 41 ; and see Curlewis v. Corfield, 1 Q. B. 814 (41 B. 0. L. R.). (0 Bromwell v. Bonney,' 1 Q. B. 39 (41 B. C. L. R.). (a) Campbell t. Webster, 15 L. J., C. P. 4; 2 C. B. 258 (52 E. C. L. R.), s. c; but see Pickin v. Graham, 1 C. & M. 725 ; 3 Tyr. 923, s. 0. (x) Swain y. Lewis, 2 C, M. & R. 261. See Doe v. Somerion, 14 L. J., Q. B. 210. OP INTEREST. 455 WBEN AN ENSASEUSNT TO SITE A BILL WILL OBEATB A LIABILITY TO INTER- EST . . . . . .298 LIABILITY OF A GUAEANTEEINO PARTY TO INTEREST .... 298 HOW INTEREST IB RECOVERED . . 298 THE BATE OF INTEREST . . . 299 INDEBITATUS COUNT .... 299 USURY 299 AT COMMON LAW . . • . 300 STATUTES AGAINST IT . . . 300 THEIR CONSTRUCTION . . . 300 SUBSTANCE OF ENACTMENTS . . 300 THERE MUST BE A LOAN . . . 301 USURY ON DISCOUNTS . . . 301 USURIOUS SECURITY FOR GOOD DEBT . 302 WHERE THE CHARGE IS NOT FOR THE LOAN BUT FOB THE LABOR . . 302 THERE MUST BE A CORRUPT INTENTION 303 HAZARD OF THE PRINCIPAL MONEY . 304 ADVANCE OF GOODS .... 305 IRISH, COLONIAL OR FOREIGN INTEREST 305 SUBSTITUTED SEOUBITY . . . 306 SEPARATE INSTRUMENTS . . . 30T INNOCENT INDORSEE .... 307 STATUTES EXEMPTING CERTAIN BILLS AND NOTES PROM THE USURY LAWS 307 TOTAL REPEAL OF THE USURY LAWS . 309 PLEADING 309 Interest, where not made payable on the face of the ihstru- ment,(a) is in the nature of damages for the retention of the prin- cipal debt. The general rule of the common law is, that interest is *not [*296] recoverable unless there were an express stipulation(6) that interest should be paid, or unless such be the usage of trade. Bills and notes, by the usage of. trade, carry interest from the time of maturity; but a 'jury are not bound, unless they see fit, to give more than nominal interest, or, indeed, any interest at all.(e) And now, by the recent statute for the amendment of the law,(c?) interest is recoverable on all debts payable by virtue of a written instrument, at a time certain, and on all other debts after a written demand, and notice that interest will be claimed from the date of the demand; but it is discretionary with the jury to give or with- hold it. (a) Bat- if interest be payable by tiie terms of the instrament, it is recoverable, not as damages but as a debt. Watkins v. Morgan, 6 C. & P. 661 (25 B. C. L. R.) ; Hudson V. Possett, 13 L. J., C. P. 141 ; 7 M. & G. 348 (49 E. C. L. R.), a. 0. So if there be a collateral agreeipeut to pay a particular rate of interest, Plorence v. Jen- nings, 26 L. J. 275; 1 0. B., N. S. 584 (87 E. C. L. R.), S. 0. As to payment of principal, in full of both principal and interest, see ante, p. 221. (6) If, at the time of a contract of sale, the vendee agrees to pay by bill or note, and neglects to do so, interest is recoverable as part of the price. Marshall v. Poole, 13 Bast, 98 ; Davis v. Smyth, 8 M. & W. 399. (c) Keene v. Keene, 27 L. J., C. P. 88 ; 3 C. B., N. S. 144 (91 B. 0. L. R.), i. 0. See Cameron v. Smith, 2 B. & A. 305 ; 5 Taunt. 626 (1 E. C. L. R.). In re Burgess, 2 Moore, 745 ; Ex parte Williams, 1 Rose, 399 ; Ex parte Cocks, Ibid. 317 ; Lowndes v. Collins, 17 Vesey, 27 ; Lithgow v. Lyan, 1 Coop. C. 0. 29. See post, p. 298. (d) 3 & 4 Will. 4, c. 42, S3. 28, 29. See Taylor v. Stott, 34 L. J., Exch. 1. 456 OF, INTEREST. Interest is seldom expressly made payable, on the face of the in- strument, but sometimes it is so. Where interest is expressly made payable on the face of the in- strument, it carries interest from its date, and not merely from its maturity. For unless the words "bearing interest," or other words of similar import, are taken to mean that interest is payable from the date of the instrument, they would be idle, since M'ithout any such words the owner of the bill or note would be entitled to interest from its maturity. Thus it has been held, that on a bill drawn payable at a certain period after date tearing interest, the plaintiff is entitled to recover interest from the date of the bill.(e) So where a note was made payable on demand with lawful interest, it was held to carry interest from the date.(/) So a promissory note, whereby the maker promised to pay, one year after his death, 300Z. with legal interest,- bears interest from the date of the note.(^)(l) Where interest is not expressly made payable by the terms of the instrument, it runs from the maturity of the bill or note. If r*9Q71 *^® ^^^^ *"" note, not expressly made payable *with interest, be payable on demand, interest runs, not from the date of the instrument, but from the time of the demand (A)(2) (c) Kennedy v. Nash, 1 Stark. 452 (2 E. C. L. R.) ; Doman v. Dibden, 1 B. & M. 381 ; Richards v. Richards, 2 B. & Ad. 447 (22 E. C. L. R.). (/) Weston T. Tomlinson, Chitty, 9lh ed. 681; Hopper v. Richmond, 1 Stark. 50j! (2E. C. L. R.). (g) EofFey T..Greenwell, 10 Ad. & E. 222 (37 E C. L. R.) ; 2 Per. & Dav. 365, s. 0. (A) Blaney t. Hendricks, 2 Bla.-761 ; Cotton v. Horsemanden, Prac. Reg. 357 ; and see Barough v. White, 4 B. & C. 327 (10 B. C. L. R.); 6 D. & Ry. 379; 2 0. & P. 8 (12 B. C. L. B.), s. 0. ; Parker v. Hutchinson, 3 Ves. 134; King t. Taylor, 5 Ves. 808 ; Lithgow v. Lyan, 1 Coop. 29 ; Lowndes v. Collins, 17 Ves. 27. (1) The interest on a note payable with annual interest on the happening of a certain event, should be computed from the date of the note. Washband v. Wasb- band, 24 Conn. 500. (2) Patrick v. Clay, 4 Bibb. 246 ; Schmidt v. Limehouse, 2 Bailey, 276 ; see Fal- len v. Chase, 4 Pike, 210. A note on demand " with interest till paid" bears inter- est from the day of its execution. Pate v. Gray, 1 Hempstead, 155. A note payable at a given time to bear interest if not paid when due, bears that interest only from maturity. Horn v. Nash, 1 Clarke, 204. OP INTEREST. 457 Where there has been no demand except the action, interest may be given from the service of the writ of summons. (i) The indorser of a bill or note has been held liable to pay in- terest only from the time that he receives notice of the dishonor. " The drawer cannot," says Mansfield, C. J., " find out by inspi- ration who is the holder, and till he finds that out he cannot pay the bill. When he has found out who is the holder, he is bound to pay the bill within a reasonable time. If he does not, he is liable to damages for not performing his contract : those damages are the interest on the bill."(y)(l) Interest was formerly computed only to the commencement of the suit, but it is now carried down to the final judgment. " That," says Lord Mansfield, " does the plaintifi" complete justice. It is agreeable to the principles of the common law, and interferes with no statute. It takes from the defendant the temptations to make use of all the unjust dilatories of chicane. Por, if interest is to stop, at the commencement of a suit, where the sum is large, the defend- ant may gain by protracting the cause in the most expensive and vexatious manner, and the more the plaintiff is injured, the less he will be relieved."(yfc) Where money is paid into court on a security carrying interest, interest must be paid, not merely to the commencement of the action, but to the time of payment into court,(Z) or the plaintiff may proceed in the action for the difference. (»») But in trover the rule formerly was that the plaintiff is *entitled to damages equal to the value of the article con- verted at the time of the conversion. And, therefore, in ■- J (t) Pierce v. Pothergill, 2 Bing. N. C. IBT (29 E. C. L. R.) ; 2 Scott, 334, A. o. (/) Walker v. Barnes, 5 Taunt. 240 (1 E. 0. L. R.); 1 Marsh. 30, s. 0. It is held in America that it is error to calculate interest on the damages allowed in a protested bill of exchange from the maturity of the bill. See 4th American edition of Bjles on Bills. (k) Robinson v. Bland, 2 Bnrr. lOTT. [l) Mercer v. Jone8,'3 Camp. 477. (m) Kidd v. Walker, 2 B. & Ad. 705 (22 B. C. L. R.). (1) It is error to calculate interest on the damages allowed in a protested bill of exchange from the maturity of the bill. Rowland v. Hoover, 2 Howard (Miss.), 769 ; Murphy v. Andrews, 13 Alabama, 722. 458 OF INTEREST. trover for bills or notes, interest was only calculated down to the time of conversion. But now by the 3 & 4 Will. 4, c. 42, the jury may give damages over and above the value of the goods at the time of the conversion. Interest ceases to run after a tender. Lord Ellenborough: "I think interest ought to stop from the ofifer to pay."(w) A banlser in charging interest to a customer who has overdrawn his account, should compute it, not from the date, but from the pay- ment of the customer's checks.(o) Though the principal have been paid, yet the plaintiff may pro- ceed for interest, unless it have been incurred by the negligencp of the plaintiff.(p) So where for the amount of the principal on an overdue bill another bill was given,, and afterwards paid, it was held that an action lay on the original bill for the interest.(g') We have already observed, that where interest is not payable by the terms of the instrument, it is in the nature of damages. Hence it has been held, that the owner of a bill is not necessarily and in- variably entitled to interest, but that a jury are justified in reducing, or withholding it altogether, (r) An engagement to give a bill will create a liability to interest On a contract, which would not otherwise carry it. Thus, where goods are sold to be paid for by a bill which is not given, interest is re- coverable as part of the price of the goods, and it has been held, that this interest may be recovered in an action for goods sold and delivered. («) A party who guarantees the due payment of a bill is liable for interest, (ii) (b) Dent T. Dunn, 3 Camp. 296. (o) Goodbody v. Foster, Gamb. Sum. Ass. 1831, Ljndhurst, 0. B. (p) Laing v. Stone, M. & M. 229, n. ; 2 M. & Ry. 561, s. c. (q) Lumley v. Musgrave, 4 Bing. N. 0. 9 (33 B. C. L. R.) ; 5 Scott, 230, s. o. ; but see the Chapter on Payment, p. 221. (r) Cameron v. Smith, 2 B. & Aid. 308 | Du Belloix v. Lord Waterpark, 1 D. i R. 16; and see Dent V. Dunn, 3 Camp. 296. («) Marshall v. Poole, 13 Bast, 98 ; Farr v. Ward, 3 M. & W. 26 ; 6 Dowl. 163, s. c. (i) Aokerman v. Bhrenaperger, 16 M. & W. 99-. OF INTEREST. 459 Where the action goes on to trial, the jury assess the interest, *the plaintiff's counsel usually, stating the sum which is claimed. Where judgment goes by default in debt, the L -I plaintiff indorses on the writ of execution more than the exact sum due at his peril. In actions of assumpsit the courts have the power of assessing the damages, but in order to inform the conscience of the courts they usually issue a writ of inquiry. In actions on bills and notes, however, the amount of damages being mere matter «f calculation, the writ of inquiry is supplied by a reference to the ■ Master to compute principal and interest.(M) The rate of interest usually allowed is five per cent., but we have seen that the jury may reduce the rate, or they may increase it. Thus, where a bill carries ten per cent, interest from its date, a jury may give the same rate of interest from its maturity to judgment. (a;)(l) The common indebitatus count for interest is good.(^) Until recently, to contract for, or to take more than five per cent, interest on any transaction relating to bills or notes was usurious and illegal. Recent statutes, however,(s) which will be considered in their order, first exempted a large proportion of bills and notes from the operation of the usury laws, and at length repealed the usury laws altogether. But as the latitude conceded by the Legislature had until recently its limits, and as questions may still arise on bills and notes even of earlier date,(a) it will still be necessary to treat of the law of usury in its operation on («) See the Common Law Procedure Act, 1852, s. 94, and 18 & 19 Tict. u. 67. [x) Kecne v. Keene, 27 L. J., 0. P. 89 ; 3 C, B., N. S. 144 (91 E. 0. L. R.), s. 0. [y) Nordenstrom v. Pitt, 13 M. & W. 723. (a) 3 & 4 Will. 4, c. 98, s. 7 ; 1 Vict. c. 80 ; 2 & 3 Vict. c. 37, and 17 & 18 Vict, c. 90. (a) In America, and in most European countries, laws against usury still exist. In Prance, after a temporary repeal, they have been re-enacted, and, under the late Republic, made more stringent^ The subject is there again undergoing discussion with much difference of opinion among the most enlightened men. (1) A note bearing interest on its face at a given rate per cent, continues to bear that interest as well after as before maturity. Kohler v. Smith, 2 California, 597; Phinney v. Baldwin, 16 Illinois, 108 ; Brewster t. Wakefield, 1 Minnesota, 352. 460 OF INTEREST. t bills and notes. Moreover, usury laws still exist in France, Germany, America, Holland, and in almost all foreign countries where bills of exchange circulate; and in some states where usury laws have been repealed they have been re-enacted. So that such questions may still arise on bills made or negotiated ,, abroad. Further, the decisions on the usury laws, in their operation on bills and notes, are in many cases applicable where the illegal consideration is of a different nature. r*Rflm *Usury is said to be an indictable misdemeanor at com- mon law. (J) The Stat. 37 Hen. 8, sect. 89, repeals all former enactments on this subject, and restrains the legal rate of interest to ten per cent. per annum, imposing a penalty on such as take niore. This statute was itself repealed in the next reign, by the 5 & 6 Edw. 6, c. 20, which prohibited the taking of any interest whatever. The stat. 13 Eliz. c. 8, repeals the 6 & 6 Edw. 6, c. 20, thereby reviving the first^mentioned statute, and avoids all contracts on which more than eight or ten per cent, is reserved, as usurious. The 21 Jac. 1 reduces the legal rate of interest to eight per cent. ; the 12 Car. 2, c. 13, further diminishes it to six per cent.; and lastly, the, 12 Anne, st. 2, c. 16, reduces it to five per cent. The two last statute^ of Anne and Charles are copied almost verbatim from the statute of James, and the statute of James contains substantially the same provisions as the two statutes of Elizabeth and . Henry 8, taken together ; so that all the cases on usury since 13 Eliz. are appli- cable to the law as it stood before the recent abolition of the usury laws. These statutes are to be construed most strongly for the sup- pression of usury, and the courts will look through the apparent ' form of a contract and the artifice of parties, at the substance and real nature of the transaction. " Where," says Lord Mansfield, "the real truth is a loan of money,. the wit of man cannot find a shift to take it out of the statute.*'(c) The statute 12 Anne, st. 2, c. 16 (as well as the former enact- ments), contains two distinct provisions : (i) Com. Dig. Usury. (c) Floyer y. Edwards, Cowp. 114. OF INTEREST, 461 « 1. That no person, upon any contract, shall take, accept, or receive for the loan of money or other commodities, above the rate of five per cent, per annum, under penalty of forfeiture of treble the money lent ; one-half to the Crown, and the other moiety to him that will sue for the same. 2. That all bonds, contracts, or assurances, whereby there shall be reserved or taken above the rate of five per cent, per annum, shall be utterly void. Hence it appears, that to tnake at once the assurance void and to incur the penalty, the contract must be for usurious interest, and usurious interest must be taken ; but that on the one hand, the penalty may be incurred without avoiding the contract, and that, on the other, the contract may be ^avoided without incur- rHcoo-i-i ring the penalty. Thus, if a bond be given for the pay- ment of a just debt, and it be afterwards agreed that the money secured by the bond shall remain in tho hands of the obligor at usurious interest, and such interest be taken, the penalty is in- curred, but the bond is still good.(c?) But if a man contract for usurious, yet take no more than legal interest, the assurance is void, though the penalty be not incurred. (e) To make a contract void for usury, there must have been a loan.{f){l) Therefore, if an acceptor discount his own acceptances, at a premium beyond legal interest, that is not usury ; for the acceptor does not advance his own money to another, but merely pays a debt to, another before it is due. " It is," says Lord Ellenborough, "an improper practice, but not usury."(^)(2) (d) Ferrall v. Shaen, 1 W. Saund. 294. (e) Fisher v. Beaaley, 1 Doug. 235. See Serjeant Williams's note to Ferrall t. Shaen, 1 W. Saiind. 295, where the cases are collected. (/) Harvey v. Archbold, 3 B. & 0. 626 (10 B. 0. L. R.); 5 D. & Ry. 500, s. o. (g) Barclay t. Walmsley, 4 Bast, 55. In America it Is held that the purchase of a bill at any price is not usurious ; but (1) A contract to take a loan of money at more than legal interest is usurious, though no illegal interest is actually taken upon it. Clark v. Badgely, 3 Halsted, 233. (2) Manhattan Co. v. Osgood, 15 Johns. 162 ;' King v. Johnson, 3 M'Cord, 365; Churchill v. Suter, 4 Mass. lS6; Bridge v. Hubbard, 15 Ibid. SSyWycoSv. Lough- head, 2 Dall. 92; MusgroYe v. Gibbs, 1 ibid. 216; Lloyd v. Keach, 2 Conn. 175; Powell T. Waters, 8 Cowen, 669 ; Nichols v. Fearson, 1 Peters, 103 ; Cram v. Hen- 462 OF INTEEBST. But the ordinary transaction of discounting a bill or note is a lending within the statute.(l) The party discounting does, in fact, lend money on interest, to be repaid either by the person receiving or by some other party to the bill, at a certain prefixed period. the purchase must be complete so as to enable the purchaser to bring suit on it. A bill not accepted is not of this character. Where an indorsee takes a bill or note with the indorsement or guaranty of the indorser, and advances thereupon less than the real value of the bill or note, the transaction is in effect a loan between the indorser and indorsee, and usurious: ; If a note, made for the purpose of raising money, is discounted at a higher pre- mium than the legal rate of interest, and none of the parties whose names are on it can, as between themselves, maintain a siiit on the note when it becomes due, pro- vided it had not been discounted, then such discounting of the note is usurious, for it is then that it first exists as a contract. It is otherwise, however, if the purchaser is ignorant of the character of the note. The taking of interest in advance upon the discount of a note is not usury ; nor taking interest for both the first and last day. ISee Byles on Bills, 3d American ed. pp. 357 and 358. dricks, 7 Wendell, 569; French v. Grindle, 3-Shepl. 163; Freeman, v. Brittin, 2 Parriso'n, 191; Mazuran v. Mead, 21 Wend. 285 ; Ballinger v. Edwards, 4 Iredell's Eq. 449 ; Haleman v. Hobson, 8 Humph. 127. The purchase of a bill at any price is not usurious ; but the purchase must be complete so as to enable the purchase; \ to bring suit on it. A bill not accepted is not of this character. M'Leau v. Lafay- ette Bank, 3 McLean, 587. Where an indorsee takes a bill or note with the indorse- ment or guarantee of the indorser, and advances thereupon less than the real value of the bill or note, the transaction is, in effect, a loan between the indorser and in- dorsee, and usurious. M'Elwee v. Collins, 4 Dev. & Batt. 209. If a note, madefor the purpose of raising money, is discounted at a higher premium than the legal rate of interest, and none of the parties whose names are on it can, as between them- selves, maintain a suit on the note, when it becomes due, provided it bad not been discounted, then such discounting of the note is usurious, for it is then that it first exists as a contract. Knights v. Putnam, 3 Pick. 184 ; Sauerwien v. Brumer, 1 Har. & Gill, 477 ; Metcalfv. Watkins, 1 Poster, 57; Gouch v. Massey, 4 Humph. 374; Acby v. Ilapelye, 1 Hill) 9; Belden v. Lamb, 17 Conn. 441 ; Dowe v. Sohutt, 2 Denio, 621. It is otherwise, however, if the purchaser is ignorant of the character of the note. Whitworth v. Adams, 5 Rand. 333 ; Ramsey v. Clark, 4 Humph. 244; Creed v. Stevens, 4 Whart. 223 ; Long v. Gantley, 4 Dev. & Batt. 313; Hays v. Walker, 7 Blackford, 540 ; May v. Campbell, 7 Humph. 450. The taking of interest in advance upon the discount of a note is not usury. Bank of tJtica v. Phillips, 3 Wenjdell, 408 ; Thornton v. Bank of Washington, 3 Peters, 40 ; State Bank v. Hunter, 1 Devereux, 100 ; M'Gill v. Wai*, 4 Scam. 21 ; Parker v. Cousins, 2 Gratt. 372. Nor taking interest for both the first and last day. Crump v. Nicholas,'^ Leigh, 251 ; State Bank v. Cowan, 8 Leigh, 238. As to the use of Rowlett's Tables of Interest, which consider three hundred and sixty days as a year, see State Bank v. Cowan, 8 Leigh, 238 ; Planters' Bank v. Snodgrass, 4 Howard (Miss,), 573 ; Parker v. Cousins, 2 Grattan, 372 ; Bank of Utica v. Wager, 8 Cowen, 398. (1) Contra, Young v. Miller, 7 B. Monroe, 540. OP INTEREST. 463- The general rule of law is, that if the interest be retained at the time of the loan, or be stipulated to be paid before it falls regu- larly due, the contract is usurious. (A) But, in favor of trade, an exception *is allowed in the case of discount of bills. . The interest is then allowed to be retained at the time of the loan, ^ J or, in other words, interest may be and is always charged, not on the sum actually advanced, but on the sum for which the bill ismade payable. (z)(l) Thus, if a bill for lOOZ. at twelve months' date is dis- counted at five per cent., the sum actually paid is 95^., and the 51. discount received is, in fact, interest at the rate of more than 51. 5s. 3c?. on the loan. It is evident that, the longer the date of the bill, the greater the amount of the interest retained, the less the actual advance, and the higher the rate of interest on the advance ; so that if a bill at twenty years' date were discounted at five per cent., the interest would annihilate the principal. This exception is, therefore, restrained to discounts in the ordinary course of trade, where the excess of charge above the legal rate is fairly referable to the trouble and expense to which the merchant or banker dis- counting is exposed. (A) And the discounting of a bill at a very long date, as, for example, two or three years, seems of itself a suspicious circumstance ; and, if it be done as an artifice to obtain more than legal interest, the transaction will be usurious, and the bill and any substituted security will be void, in the hands of the discounter, against all parties. (Z)(2) ' If a bill or note be given on an usurious contract, but for a pre- existing legal debt, the debt is not extinguished, though the se- curity is void.(m) (A) Barnes t. Worlich, Noy , 41 ; Cro. Jac. 25 ; Yel. 30; Moore, 644, s. o. (s) It is held in America that the day on which a note is discounted is to be ex. eluded in the computation of interest ; but a day's interest has accrued at any time of the next day. See 3d American ed. of Byles on Bills, p. 3S8. (4) Marsh v. Martindale, 3 Bos. & Pal. 154. (1) Ibid. (m) Phillips V. Cockayne, 3 Gamp. 119. A. being about to purchase an estate, (1) The day on which a note is discounted is to be excluded, in the computation of interest ; but a day's interest has accrued at any time of the next day. Bank of Burlington v. Durkee, 1 Vermont, 403. (2) When the charge of exchange will or will not be usurious. Andrews v. Pond, 13 Peters, 65; Merritt v. Benton, 10 Wend. 116; Cayuga Bank v. Hunt, 2 Hill, 635 ; Commercial Bank r. Nolan, 1 Howard (Miss.), 508 ; M'Lean y. Bank, 3 M.'Lean, 587; Holford t. Blatchford, 2 Sandf Ch. Rep. 149; Pilcher v. Banks, 7 B. Monroe, 548. 464 OF INTEREST. If the excessive charge be in any case no more than a fair re- muneration for trouble and expense, it will not be usury. Thus, where a man took promissory notes to a bank to be discounted,- and, on being asked how he would have the money, said, partly in ' cash, partly in account, and partly in *bills on London, L -■ some at three, some at seven, and some at thirty days' sight ; and the banker accordingly discounted the notes at five per cent, in that way, deducting discount for the whole time that the notes had to run, but making no allowance for the time which must elapse before the bills on London became payable, though the cash could not be said to be advanced by him till the bills on Lon- don fell due, and though in consequence be received more than legal interest for his advances, the transaction was held not to be usurious, for, the mode of payment being suggested by the other party, it could not have been devised by him as a screen for a cor- rup,t loan. And it was held that the interest which he gained on the bills on London, might be considered as a compensation for the trouble and expense of paying the money there ; that the discount and remittance were separate transactions.(TO) But, where the substituted bill was not given at the particular request of the par- ties applying for discount, and was itself discounted. Lord Kenyon held the original discount usurious, (o) A merchant, banker, or other person, may, in addition to the discount, take a reasonable and customary sum for remitting the note or bill for payment, and other incidental expenses. (p) So he may take a commission for accepting or drawing bills, whethei^ the bills be payable in the same place or not.(g') IJo precise rate for commission in such cases is fixed by law, but the usual rate, sanctioned by the decisions, is 5«. per cent. Upon a long and complicated account a banker has been allowed to charge one-half per cent. ; but, in another case, where B. agreed to lend him money upon it, and before the conveyance from the vendor to A. was completed, on receiving the then title deeds, advanced the money; after- wards it was agreed between A. and B. that A. should pay usurious interest on the money advanced ; and after this agreement, the conveyance from the vendor to A. was by A. handed over to B>, A. having become bankrupt; held, that his assignees, could not in trover recover the latter deed, because by the first agreement, untainted with usury, B. acquired a right to it. Wood v. Grimwood, 10 B. & C. 679 (21 E. 0. L. B.). (») Hammett v. Yea, 1 B. & P. 144. (o) Matthews v. Griffiths, Peake, 200. (p) Winch V. Fenn, cited in Auriol v. Thomas, 2 T. R. 52 ; Ex parte Jones, IJ Ves. 332 ; Baynes v. Fry, 15 Ves. 120 ; Masterman v. Cowrie, 3 Camp. 488. (j) Masterman v. Cowrie, 3 Camp. 488. OF INTEREST. 465 a person in general business, but not a banker, charged 7s. 6d. per cent, for discounting bills, and gave no evidence of having been put to any extraordinary trouble or expense, Lord EUenborough thought the charge usurious.(r) Whether in any case the charge for commission be but a fair remuneration for trouble and expense, or a mere artifice for charging illegal interest, is- a question of fact for the jury.(s)(l) To constitute usury, tHere must, further, be a corrupt intention, not, perhaps to evade the statute, for a man may not know that there is such a law; but his ignorance of the *law here, as in all other cases, is ' no excuse, for it is one which (as '- -! Selden observes) every one might make, and nobody could tell how to refute him ; but there must be a corrupt intention to take exor- bitant interest. (t){2) Thus the old cases show, that if illegal inte- rest be reserved by mistake, as by an error in the computation of time, it is not usury.(M) Accordingly, where A. was indebted to the plaintifiF in a bond executed in St. Kitts, conditioned for the payment of 6000Z., and six per cent, interest, and it was agreed (r) Brook v. Middleton, 1 Camp. 445. («) Oarstairs v. Stein, 4 M. & S. 192 ; Harris v. Boston, 2 Camp. 348 ; Masterman V. Cowrie, 3 Camp. 488. (() It is held in America that parting' with depreciated paper at par, and charging for the same the legal rate of interest, does not constitute usury. See 3d American "ed. pf Byles on Bills, p. 361. (m) Buclsley v. Gnilbank, Cro. Jac. eTY; Nevison v. Whitley, Oro. Car. 501. (1) A oompepsation, exceeding the lawful rate of interest for obtaining money at the bank, on one's own security for the use of another, is not usury, unless it is so unreasonable and extravagant as to show that it was a cover for usury, and whether it is so or not is a question for the jury. Hutchinson v. Hosmer, 2 Conn. 341. As to when the charge of commission will be usurious. See Bartlett v. Williams, 1 Pick. 288 ; Trotter v. Curtis, 19 Johns. 160 ; Ramsdell v. Morgan, 16 Wendell, 574 ; McKesson v. McDowell, 4 Dev. & Batt. 120; Suydam v. Westfall, 4 Hill, 211 ; Har- ger v. McOullough, 2 Deuio, 119; Dry Dock Co. v. Trust Co., 3 Sandf. Ch. Rep. 215. The lon& fide sale of one's credit or guarantee is not usurious, though it ex- ceed the legal rate of interest, and is not connected with a loan. Ketchum v. Bar- ber, 4 Hill, 224 ; More v. Howland, 4 Denio, 264. (2) Ohilders v. Dean, 4 Band. 406 ; Maine Bank v. Butts, 9 Mass. 49 ; Gibson v. Steams, 3 N. Hamp. 185 ; Bank of Utica v. Smalley, 2 Oowen, 770 ; Duvall v. Far- mers' Bank, 7 Gill & Johns. 44. Parting with depreciated paper at par and charging for the same the legal rate of interest, does not constitute usury. 0. S. Bank v. Waggener, 9 Peters, 378. See Oaton v. Shaw, 2 Har. & Gill, 13 ; U. S. Bank v. Owen, 2 Peters, 537 ; Sizer v. Miller, 1 Hill, 227. Contra, Bondurant v. Bank, 8 Smedes & Marshall, 533 ; Cook v. Bank, Ibid. 543. 30 466 OF INTEREST. that the principal should be paid in two bills of exchange at long dates, which were drawn in favor of the ,plaintiflF, for the principal and interest which would be due at the time they were payable, the plaintiff's agent computing the interest by mistake still at six per cent., and the bond was then cancelled, Mansfield, C. J., held that the action on the bills might clearly be maintained for the sum bond fide due ; as the excess in the amount of the bill had arisen from a mere mistake, and no intention to take usury could at any rate be imputed to the plaintiff himself, (a;) A. was indebted to B. in 80Z., and gave him a promissory note for 871. Sg., payable by four quarterly instalments (being the amount of the principal and legal interest), with a clause, that, in case default should be made in payment of any one instalment, the whole sum should become payable. The court held that this was not a stipulation for usury, but for a penalty, and that A. was entitled ^o recover the whole sum on default.(^) Where a broker was employed to get a bill discounted, which he • did upon an agreement to reserve to himself 10s. per cent, commission, as the party advancing the money was no party to this agreement, and had no intention that more than legal interest should be charged, it was held that the discount was not usurious.(s) The contract must be for repayment of the principal, at all events ; for if the principal be put in hazard, it is not usury. " If I lend lOOZ. to have 1201. at the year's end upon a casualty, if the casualty goes to the interest only, and not to the principal, it is usury ; for the party is sure to have the principal again come what will come; but if the *iriterest and principal are both in L -I hazard, it is not then usury."(a) Hence the purchase, of an annuity with a clause for redemption by the grantor, though on terras never so exorbitant, is not usury. And where the lender becomes .a partner with the borrower by deed in the borrower's trade, and is to receive profits thereout, in addition to the interest, to a certain amount, at all events, this may be a contract of part- nership; and not an usurious loan.(6) But if the lender do not (x) Glasfurd t. Laing, 1 Camp. 149. (y) Wells V. Girling, 4 Moore, 78 ; IB & B. 447 (5 E. 0. L. R.) ; Gow, 21, 3. c. ^») Da'gnall T. Wigley, 11 East, 43. (o) Koberts v. Trenayne, Cro. Jac. 507 ; Chesterfield t. Jansen, 1 Wils. 286. (6) Gilpin y. Enderbey, B B. & Al. 954 (7 E. 0. L. R.) ; 1 D. & Ry. 570, s. o. OF INTEREST. 467 profess to be a partner, and is nevertheless to receive a portion of the profits in addition to the interest, it is an usurious loan, for though the lender thereby so far puts his principal in hazard, as to render it liable to partnership creditors, yet it is no further hazarded than in the case of every other loan, namely, by the risk of the borrower's insolvency.(e) Usury may be committed within the express words of the stat- ute, not only by advancing money, but by advancing goods, to be repaid in money. If goods are forced upon the borrower in lieu of money, as, for example, upon the party applying for the dis- count of a bill, the transaction is suspicious, and it lies on. the lender to show not only that the goods were fairly worth the sum at which they were estimated, but that they would have been easily available in the borrower's hands for raising that sum by re- sale. (rf) But, where the lender requests or prefers to take goods, it lies on him to show that they were estimated above their real value, (e)(1) In Ireland, in many of the British colonies, and in various for- eign states, more than five per cent, interest is allowed by the law of the place. Whenever the contract is made abroad it is not usurious here, because the utmost interest which the law of the place allows is reserved. But it often happens that the transaction is partly in one country and partly in another, so that whether it is to be considered as a domestic or a foreign contract, becomes a question of great nicety. A. resides in England, B. at Gibraltar, where the legal rate *of interest is six per cent., and where r:(=Qnf>-| a bill on England at ninety days is reckoned as cash. It was agreed that A. should consign to B. goods for sale, and that, (c) Moore v. Wilson, 4 T. R. 353. {d) Davis v. Hardacre, 2 Camp. 375. (e) Ooombe v. Miles, 2 Camp, 553. It has been held in America that a contract to lend a portion of the money wanted by the borrower, on condition that he will receive stock at a price much above the market value, to make up the deficiency, is usurious. See 3d American ed. of Byles on Bills, p. 362. (1) A contract to lend a portioa of the money wanted by the borrower, on condi- tion that he will receive stock at a price much above the market value, to make up the deficiency, is usurious. Stribbling v. Bank, 5 Rand. 132 ; Valley Bank v. Strib- bling, 7. Leigh, 26; Bank v. Arthur, 3 Grattan, 173 ; Archer v.. Putnam, 12 Smedes k Marshall, 286. 468 OF INTEREST. upon the receipt of the invoice, B. should remit to A. bills on Lon- don at ninety days' date, and charge interest at six per cent., from the date of the bills. Lord Tenterden : — " The case must be con- sidered as if the bargain for the advances had been made at Gibral- tar and not in London. "(/) The statutes 14 Geo. 3, c. 79, and 1 & 2 Geo. 4, c. 51, the latter repealed and re-enacted by 3 Geo. 4, c. 47, reciting that doubts had arisen on the point, enact, that all mortgages or securities of or concerning any lands, tenements, hereditaments, slaves, cattle, or other things, in Ireland or the West India colonies, whereby interest is reserved above the rate of five per cent., but not exceed- ing the rate allowed by the law of that place, are valid, though ex- ecuted in Q-reat Britain, as well as all bonds and covenants, origi- nal or coMateral, for further securing money so advanced. It will be observed, that these statutes do not include bills and notes, and, therefore, it is a doubtful point, whether a bill or note not exempted from the Usury Laws by the recent statutes, and given in England as a collateral security for an Irish, colonial, or foreign debt, with more than five per cent, interest, be legal.(^) It seems clear, how- ever, that if the original security be cancelled, and a bill or note be taken as a substituted seburity, but carrying the original interest, such a bill or note is usurious. (A) If an usurious bill or note be in the hands of a holder, who was either a party to or cognizant of the usurious transaction, and he give it up for a substituted security, as a note, or even if he deliver up this note for a further security, as a bond, the original usurious taint infects both the subsequent securities, and either is void.(j) But, if the party taking a substituted security had no notice of the usury, the security is good.(A;) Yet, before 58 Geo. 3, c. 98, if a party had taken an usurious bill without notice of the usury, and, afterwards, upon learning the defect, took a substituted bill, such second bill was void.(Z) But, if the substituted security be for (/) Harvey v. Archbold, 3 B. & 0. 626 (10 E. C. L. R.) ; 5 D. & R. 500, 3. o. (^r) See Lord Rauelagh v. Champante, 2 Vern. 395 ; 1 Eq. Oa. Ab. 289. (A.) Glasfurd v. Laing, 1 Camp. U9 ; Dewar v. Span, 3 T. R. 426. '{i) Marsh v. Martindale, 3 B. & P. 154. {k) Gnthbert v. Haley, 8 T. R. 390 ; 3 Esp. 22, s. o. {I) .Chapman .V. Black, 2 B. & Aid. 588 ; Amory t. Merry weather, 2 B. & 0. 673 (9 E. C. L. R.) J 4 D. & R. 86, s. o. OF INTEREST. ' 469 principal and legal interest only, expunging the bad *part r* 007-1 of the debt, it is good.(m) And where a bill or note is given on a consideration, partly usurious and partly legal, the hol- der cannot recover even for the good part, though the whole amount of the bill should not be sufficient to cover that.(w) It makes no difiFerence that the contract is comprised in two separate instruments. (0) Before the late statute, if the bill were tainted with usury in its inception, or if it was necessary for the holder to make title through any party guilty of usury,(p) he could not recover, though he had no notice of the usury. But now, by the 58 Geo. 8, c. 93, no bill or note, though given for an usurious considera- tion, or upon an usurious contract, shall be void in the hands of an indorsee for value, unless he had notice at the time of taking the bill, that it had been given for an usurious consideration, (g') The 3 & 4 Will. 4, e. 98, s. 7, exempts from the operation of the Usury Laws bills aad notes not having more than three months to run. It seems that a bill or note good within this act is hot inval- idated by being part of a real security, (r) On this statute it has been decided that a warrant of attorney given to secure a bill, which, but for the act, would have been usurious, is within the protection of the 8tatute.(8) The act (m) Preston t. Jackson, 2 Stark. 237 (3 B. C. L. R.) ; Barnes v. Hedley, 1 Camp. 157-180, d. ; 2 Taunt. 184, s. 0. , (n) Harrison r. Hannel, 5 Tannt. 780 (1 E. C. L. R.) ; 1 Marsh. 349, s. c. (0) Roberts v. Trenayne, Oro. Jao. 507 ; White t. Wright, 3 B. & 0. 273 (10 B. C. L. R.) ; 5 D. & R. 10, S. 0. [p) Lowes V. Mazzaredo, 1 Stark 385 (2 B. C. L. E.). (y) This statute does not apply to a note in the hands of a party who has taken it in payment af an antecedent debt; see also 5 & 6 Will. 4, c. 41 ; Vallance v. Siddel, 6 Ad. & Ell. 932 (33 B. C. L. R.) ; 2 N. & P. 78, s. 0. In an action brought before the passing of this act, but tried after, the defendant may avail himself of 9 Anne, v. 14, and is entitled to a nonsuit if he prove the bill to be given for a gaming consideration. Hitchcock v. Way, ,6 Ad. & Ell. 943 (33 B. C. L. R.) ; 2 Nev. & P. 72, s. 0. (r) Clack v. Sainsbury, 11 C. B. 695 (73 E. C. L. R.) ; Nixon v. Phillips, 7 Exch. 188 I Semple v. Cornwall, 10 Exch. 617 ; Ex parte Warrington, 3 De Gex, M. & G. 169 ; 22 L. J., Bank. 33, s. 0. ; Langton v. Haynes, 25 L. J., Exch. 319 j 1 H. & N. 366, s. 0. («) Connop V. Meaks, 4 Nev. & Man. 302 ; 2 Ad. & E. 326 (29 E. C. L. R.), s. 0. ; Lane v. Horlock, 25 L. J., Chan. 253 ; 5 H. L. Cas. 580, s. 0. 470 OP INTEREST. / applies to a note payable to A. or order on demand, and given for money lent on an agreement to pay 5Z. over and above all lawful interest for the loan during such time *as A. should for- L -1 bear, and give day of payment for the same.(i) The 1 Viet. c. 80, a temporary act, exempted from 'the operation of the Usury Laws bills and notes not having more than twelve months to run. The 2 & 3 Vict. c. 37 exempts from the operation of the Usury Laws bills and notes not having more than twelve months to run, and all contracts(u) for the loan of money above the sum of ten pounds, providing that the act shall not extend to loans on landed security. (a;) But a loan of money on security of a lease, a war- rant of attorney, and a promissory note, are not protected. (^) The question is, on what security was the money lent? If on a mortgage, and the bill were taken afterwards, there is no valid loan ; if on a bill, and the mortgage were taken afterwards, there is a good debt.(s) Where a party borrowed a sum of 6700Z. on the security of a mortgage and a promissory note, which was dis- counted by the lender at five per cent., so that the interest to be paid was more than five per cent, on the sum actually advanced, the mortgage was held valid, the jury finding that the primary object of the parties was the discounting of the note.(a) The dis- count of bills is not illegal, though the amount be secured by a warrant of attorney, which may become a charge on land. (6) {i) Vallance v. Siddel, supra, note (j). («) Thibault v. Gibson, 12 M. & W. 88. (k) So that, as the law recently stood, persons who have security to offer, and require no protection; were protected ; but those who had no security to offer, and therefore most needed protection, were unprotected. [y) Berrington v. CoUis, 5 Bing. N. C. 332 (35 E. C. L. K.) ; T Scott, 302, s. o. As to renewals and agreements to give bills at a future time, see Holt v. Mierg, 5 M. &W. 168; King v. Braddon, 10 Ad, & E. 675 (3T E. C. L. R.) ; 2 Per. & D. 646, s.O. (z) Downes v. Garbutt, 12 L. J., Q. B. 269 ; 2 Dowl. N. S. 939, s. 0. ; Fussell t. Daniel, 10 Exch. 581; and bee Hodgkinsou v. Wyittt, 4 Q. B. T49 (45 E. 0. L. R.); Follett T. Moore, 19 L. J., Exch. 6 ; 4 Exch. 410, s. o. ; Ex parte Warrington, 3 De Gex, M. k G. 159 ; 22 L. J., Bank. 33, S; c. But see Langton v. Haynes, 25 L. J., Exch. 319; 1 H. & N. 366, s. c. (ffi) This transaction was before the statute 2 & 3 Vict. c. 37. Doe v. King, 12 L. J., Exch. 320 ; 11 M. & W. 333, s. 0. Qucere, whether an advance on the deposit of a policy of insurance, though the insurance companies have real securities, and though the-assured be a member of the company, is a loan secured by an interest in land. March v. The Attorney-General, 5 Beavan, 433. (6) Lane v. Horlock, 16 L. J., Q. B. 87 ; Lane v. Horlock, 25 L. J., Chan. 253 ; 5 H. L. Cas. 580, s. o. OP THE ALTBKATION OF A BILL OR NOTE. 471 The statute 2 & 3 Vic. c. 37, (e) is not disabling or *re- trospective, and therefore if a real security be given for L -■ the amount of bills discounted at more than five per cent, before the statute, under the 1 Vict. c. 80, the real security is not tainted with usury, ((i) But now the statute 17 & 18 Vict. c. 90 sweeps away the Usury Laws altogether. And it has been held, that bills accepted since the repeal, in renewal of usurious bills accepted before the repeal, are not without consideration. (e) In a declaration or plea, grounded on the statute of 12 Anne, Stat. 2, c. 16, it is not necessary to negative^ the exception intro- duced by the 2 & 3 Vict. c. 37. The exception must come from the other 8ide.(/) And in stating that exception it lies on the party introducing it to aver not only that the contract was after the passing of the statute of Victoria, but that it did not relate to land.(^) ♦CHAPTER XXIV. OF THE ALTERATION OF A BILL OR NOTE. [*310] EFFECT OP ALTERATION AT COMMON LAW 310 OP DEEDS 310 OP BILLS AND NOTES . . . .311 DNDER THE STAMP ACTS . . . 312 WHERE AN ALTERATION WILL NOT TITIATE 312 BEFORE BILL ISSQED . . . .313 IN CORRECTION OF A MISTAKE ' . .814 VHEN THE ALTERATION OF THE INSTED- MENT EXTINS0ISHES THE DEBT . 314 RENEWAL OF ALTERED BILL . . 315 WHEN ALTERATION NEED HOT BE PLEADED 315 WHEN IT MUST BE PLEADED . . 318 REQUISITES OP PLEA .... 316 BORTHEN OP PROOF .... 316 In treating of the alteration of a negotiable instrument, we will (c) This act was extended by the 4 & 5 Vict. c. 54, to the 1st January, 1844; by 6 & 7 Vict, c. 45, to the 1st January, 1846 ; by the 8 & 9 Vict. c. 102, to the 1st January, 1851, and by the 13 & 14 Vict. c. 56, to 1st January, 1856. (d) Bell .'. Coleman, 15 L. J., C. P. 2 f 2 0. B. 268 (52 E. C. L. E.), a. 0. (e) Flight V. Read, 32 L. J. 265; 1 H. & 0. 703, s. c. (/) Thibaultr. Gibson, 12 M. &. W. 88. (sr) Washbourne v. Burrows, 16 L. J.,Exch. 266; 1 Bxch. 107, s. o. 472 Oi THE ALTBKATION OF A BILL OR NOTE. consider the effect of alteration ; first, at common law ; and secondly, under the Stamp Acts. First, at common law. If a deed, well and sufficiently made, in its creation, shall be afterwards altered by rasure, interlining, addition, drawing a line through the words, though they be still legible, or by writing new letters upon the old in any material place or part of it, either by the party that hath the deed, or any other whomsoever, unless the alteration be by him who is bound by the deed (for he shall not take advantage of his own wrong, or by his consent), the deed has lost its force and is become void.(a) And by a recent solemn decision, a deed, bill of exchange, pro- missory note, guarantie, or any other executory written contract is avoided by an alteration in a material part, although that altera- tion be made by a stranger. (S)(l) For a person who has the custody of an instrument is bound to preserve it in its integrity. And as r*S1 1 1 ^* ■''^oiil'i ^^ avoided by *his fraud in altering it himself, so it shall be avoided by his laches in suffering another to alter it. The rules relating to alteration or rasure of deeds apply (at least for the most part) to other written contracts, and to bills and notes. Thus, where a bill was drawn payable to A. B., and whilst in his possession the date was altered, and the bill was subsequently in- dorsed to the plaintiffs for value, it was held that they could not recover against the acceptor.(2) "It seems admitted," says Ash- (a) Sheppard's Touchstone, 68. And a deed is not it seems vacated at common law, if the alteration, though material, were with the consent of all the parties. Markham v. Gonaston, Cro. Eliz. 62 1 ; Zonch v. Clay, 2 Lev. 35; Com. Dig. Fait, P. 1. (J) Davidson v. Cooper, II M". & W. IIS; affirmed in error, 13 M. & W. 343. It is held in America that an alteration by a stranger, though material, will not render the instrument inoperative. See 4th American ed. of Byles on Bills. (1) An alteration by a stranger, though material, will not render the instrument inoperative. NichoUs T.Johnson, 10 Conn. 192; Medlin v. Platte County, 8 Mis- souri, 235 ; Davis v. Carlisle, 5 Alabama, 101 ; Ford v. Ford, 17 Pick. 418 ; Waring V. Smyth, 2 Barb. Ch. Rep. 119; Lee v. Alexander, 9 B. Monroe, 25; Labberingv. Kohlbrecher, 22 Missouri, 596. Alteration by payee's wife, without his knowledge, avoids the note. Morrison v. Welty, 18 Maryland, 169. An alteration by the agent of the maker in good faith does not avoid it. Van Brunt v. Eotf, 35 Barbour, 501. (2) An alteration by the payee or holder of a bill or note in any material respect avoids the instrument as to the maker, and all parties except the person making the alteration even in the hands of an innocent indorsee for value, Stephens v. 1 OF THE ALTERATION OP A BILL OR NOTE. 473 hurst, J., " that if this had been a deed, the alteration would have vitiated, it. Now, I cannot see any reason why the principle on Graham, 7 Serg. & Eawle, 508 ; Oloud v. Stout, 5 Litt. 205 ; Pankey t. Mitchell, 1 Breeze, 301 ; Mitchell v. Ringgold, 3 Har. & Johns. 159 ; Trigg t. Taylor, 27 Mis- souri, 246 ; Hodge t. Gilman, 20 Illinois, 437. Even though it could not be de- tected by the most careful scrutiny. Wade v. Withington, 1 Allen, 561. Though by the alteration the day of payment is protracted, the note is nevertheless void. United States Bank v. Russell, 3 Yeates, 391 ; Miller v. Gilleland, 19 Penna. State Eep. 119; Owings v. Amot, 33 Missouri, 406; Lisle r. Rogers, 18 B. Monroe, 528. If the note was dated wrong by mistake, yet an alteration without the maker's con- sent, express or implied, renders it void. Bowers v. Jewell, 2 New Hamp. 543. See Hooker v. Jamison, 2 Watts & Serg. 438 ; Henderson v. Wilson, 6 How. Miss. Eep. 65. Writing in the margin " payable at the Bank of America," held to be a material alteration. Woodworth v. Bank of America, 13 Johns. 391 ; Simpson y, Stackhouse, 9 Barr, 186 ; Hill v. Cooley, 10 Wright, 259 ; Sturges v. Williams, 9 Ohio (N. S.), 443 ; Southwark Bank v. Gross, 11 Casey, 80. An accommodation bill was drawn for the purpose of being discounted at a bank, and at the foot of it was a memorandum, signed by the last indorser, directing the proceeds of the bill to be credited to the drawer. On the trial of a suit on the bill by the last against H, prior indorser, it appeared that this memorandum had been cut off. It was held that the memorandum was no part of the bill, and that its being taken oS in no way affected the rights of the parties to the bill. Hubbard v. Williamson, 25 Iredell, 397. If blank spaces be left to be filled after execution, the consent of the party exe- cuting that they shall be afterwards filled is to be implied. Wiley v. Moon, 17 Serg. & Rawle, 438 ; Smith v. Crooker, 5 Mass. 538; Jordan v. Neilson, 2 Wash. 164; Boardman v. Gore, 1 Stewart, 517 ; Bank t. Curry, 2 Dana, 142 ; Stahl v. Berger, 10 Serg. & Eawle, 170; Commonwealth Bank v. McChord, 4 Dana, 191; Douglass V. Scott, 8 Leigh, 43 ; Richmond Manufacturing Co. v. Davis, 7 Blackford, 412 ; Ives v. Farmers' Bank, 2 Allen, 236. In the case of the printed form of a note, filled up by the maker, and then indorsed for his accommodation by another, and then altered by the maker to a larger sum, by taking advantage of some vacant space in the form; held that the indorser was only liable for the smaller sum. Worrall v. Gheen, 3 Wright, 388. An alteration which does not vary the meaning of an in- strument does not avoid it, though made by the party claiming under it. NichoUs T. Johnson, 10 Conn. 192; Granite Railway Co. v. Bacon, 15 Pick. 239; Morrill v. Otis, 12 N. Hamp. 466; Pequawket Bridge v. Mathes, 6 N. Hamp. 139; Mathis v. Mathis, 6 Dev. & Batt. 60; Harris v. Bradford, 4 Alabama, 214; Gardner v. Sisk, 3 Barr, 326; Burnham v. Ayer, 35 New Hamp. 351 ; Moye v. Herndon, 30 Miss. 110 ; Humphreys v. Crane, 5 California, 173. A promissory note was made payable to a partnership under one name, and indorsed by a surety, and was afterwards altered by the maker and payee, without the knowledge of the surety, so as to be- payable to the same partnership by a different name ; held, in an action by the payee against the surety, that the alteration was immaterial, and did not affect the validity of the note. Arnold v. Jones, 2 Ehode Island, 345. When a person not present at the execution of a promissory note afterwards puts his name thereto as a witness by the procurement of the payee,. it avoids the note. Homer V. Wallis, 11 Mass. 309. AUter where a person present at the execution, 474 OP THE ALTERATION OF A BILL OR NOTE. ■which a deed -would have been avoided, should not extend to a case of a bill of exchange. There is no magic in parchmemt or waxj and the principle to be extracted from the cases is, that any altera- tion avoids the contract. If A. B. had btought this action, he could not have recovered, becau'sfe he must suffer from any alteration of the bill whilst in his custody ; the same objection must hold against the plaintiffs, who derive title from him. "(e) So, where the drawer, without the consent of the acceptor, added to the acceptance' the words " Payable at Mr. B.'s, Chiswell Streetj" it was held that this was a material alteration, discharging the acceptor.(c?) And the same point has been repeatedly decided since the 1 & 2 Geo. 4, c. 78. " Suppose," says Abbott, 0. J., "a bill so altered to he indorsed to a person ignorant of the alteration ; his right to sue his indorser would, as the bill appears, be complete, upon default made where the bill is payable; whereas, in truth, the acceptor, not having in reality undertaken to ,pay there, would have committed no de- fault by such non-payment. I am of opinion, therefore, that the alteration is in a material part of the bill, and the acceptor is, in consequence, discharged, "(e) (c) Master v. Miller, 4 T. R. 320 ; in error, 2 H. Bl. 140, s. c. {d) Cowie T.;Hallsall, 4 B. & Al. 197 (6E.C.L.R.); SStark. 36 (3E.C.L. E.),s.c. (e) M'Int Jsh v. Haydon, R. & M.. 362 f Desbrowe v. Weatlierby, 1 M. & Rob. 438 1 afterwards affixes bis name as a witness without any fraadulent intent. Smitli v. Dunham, 8 Picli. 249 ; see Marshall v. Gougler, 10 Serg. & Rawie, 164 ; Ravisies V. Alston, 5 Alabama, 297 ; Stewart v. Preston, 1 Branch, 10 ; Blaekwell v. Lane, 4 Dev. & Batt. 113; Adams v. Frye, 3 Metcalf, 103; Henning t. Werkheiser, 8 Barr, 518; Thornton v. Appleton, 29 Maine, 298 ; State v. Gherkin, 7 Iredell, 206, The alteration of a note, procured by the payee, by the addition of the name of an- other party as maker, after its execution and delivery by the former parties, and without their consent, avoids it as to such original parties. Bowers v. Briggs, 20 Indiana, 139 ; Henry v. Coats, IT Ibid. 161. Where the payee wrote his name under the names of the makers, and added after his own name the word " security," it waS' held to be a material alteration. Chappell v. Spencer, 23 Barbour, 584. Altera- tion by adding " with interest," though without fraudulent intent, vitiates the notei Fay v. Smith, 1 Allen, 47T. If the maker, after it is indorsed, add "with interest, ''■ it avoids the note, even though the alteration was made before delivery to the payee. Waterman v. Vose, 43 Maine, 504. A note made by two subsei quently altered by one, is no longer binding on the other. Crockett v. Tho- Viason, 5 Sneed, 342. If the payee make a material alteration, he can neither re- cover on the note nor on the contract for which the note was given. White t. Hass, 32 Alabama, 430. The payee of a note given for the price of goods sold, having altered it without fraudj may recover on the common counts. Merrick v. Boury, 4 Ohio (N. S.)j 60. OF THE ALTERATION OP A BILL OR NOTE. 475 But it has been held by the same learned Judge,(/) and *by the Court of Exchequer, that a similar addition, with the consent of the acceptor, would not invalidate the in- ^ -I strument, either at common law or under the Stamp Act. Where a bill was addressed to A. B. & Co., and the acceptance was by A. and B., and the address was afterwards altered to correspond with the acceptance, as the acceptors would be liable either way, the alteration was held to be immaterial.(^) An alteration of a foreign bill by adding either on the face of the bill or to the indorsements the rate of exchange, according to which the bill is to be paid, is fatal.(A) The addition of the words " interest to be paid at six per cent, per annum," written at the corner of the note, and not in the body, is a material alteration avoiding the note.(i) •But, secondly, even if the consent of all parties have been ob- tained to an alteration in a material part, such alteration, never- theless, avoids the bill, under the Stamp Laws ; for it is become a new and different instrument, and therefore requires a new stamp ; which stamp cannot, as we have seen, then be affixed.(y) Any alteration in the date, sum,(fe) or time of payment, the insertion of words rendering negotiable an instrument which before was not so, altering the words '■^ value received," into an expression of the par- ticular consideration which passed, are respectively material altera- 6 C. & P. V58 (25 E. 0. L. R.), s. 0. ; Taylor v. Moseley, 1 M. & Rob. 439, n. ; Sem- ple V. Cole, 8 L. J., Exch. 155. These decisions have been recently under review and confirmed by the Court of Queen's Bench in Burchfield v. Moore, 23 L. J., Q. B. 261 ; 3 B. & B. 683 (11 E. C. L. R.), s. c; Gardner v. Walsh, 5 E. &. B. 83 (85 E. 0. h. R.). (/) Stevens v. Lloyd, M. & M. 292 ; and see Jacobs v. Hart, 6 M. & S. 142 ; Wal- ter V. Cubley, 2 C. & M. 151 ; but in Walter v. Cubley, the attention of the Court was not drawn to Gibb v. Mather, 8 Bing. 221 (21 E. 0. L. R.); 1 Moore & S. 387 ; 2 C. & J. 254, s. c. Would not the alteration have been material in an action against the drawer? Stevens v. Lloyd, M. & M. 292 ; and if so, was not the legal eflfect of the instrument altered ? {g) Parquhar v. Sonthey, M. & M. 17 ; 2 C. & P. 497 (12 E. C. L. R.), s. o. ; Hamelin v. Brnck, 15 L. J., Q. B. 343 ; 9 Q. B. 306 (58 E. C. L. R.), s. 0. (A) Hirsciifield v. Smith, 35 L. J., C. P. 177, though the additions were in red ink. (0 Warrington v. Early, 23 L. J., Q. B. 47. (,;■) Wilson V. Justice, Bayley, 6th ed. 118; Bowman v. Nichol, 5 T. R. 537; 1 Esp. 81, B. 0. (A) Hamelin v. Brack, 15 L. J., Q. B. 343 ; 9 Q. B. 306 (58 E. C. L. R.), s. 0. 476 OF THE ALTBKATION OF A BILL OR NOTE. tions, avoiding the bill under the Stamp Act8.(Z) But the addition of another name to a joint and several note on a different part of the face of the note with the assent of all parties, has been held ut res magis valeat to operate as an indorsement. (m) There are, however, two cases in which an alteration, tiough in a material part, will not vacate the instruinent ; first, where such an alteration is made before the bill is issued, or become an avail- able instrument ; and, secondly, where the bill is altered to correct a mistake, and in furtherance of the original intention of the par- ties.(w)(l) r*QiQT *Thus, where the drawer of a bill, payable to his own ■- -I order, sent it to the drawee for acceptance, and the drawee requested that a longer time might be allowed for payment, and an alteration to that effect was accordingly made with the consent of the drawer, and the bill was afterwards accepted ; it was held that, the alteration being made before the bill was an available instru- ment against any party, a new stamp was unnecessary.(o) Upon the same principle, where three persons joined, as drawer, acceptor, and indorser, in the fabrication of an accommodation bill, and the date was altered before it came into the hands of a holder for {I) Bathe v. Taylor, 15 East, 412 ; Walton v. Hastings, 4 Camp. 223 ; 1 Stark. 215 (2 B. C. L. R.), s. c; Outhwalte v. Luntlcy, 4 Gamp. 179; Knill v. Williams, 10 East, 431. (m) Ex parte Yates, 27 L. J., Bank. 9 ; 2 De G. & J. 191, s. o. But see Gardner V. Walsh, 5 E. & B. 83 (85 B. 0. L. R.). (») See Catton t. Simpson, 8 Ad. & E. 136 (35 E. C. L. R.)j overruled by Gardner T. Walsh, 5 E. & B. 83 (85 E. G. L. R.); but see Ex parte Yates, supra, and Dodge V. Pringle, 29 L. J., Exch. 115. (0) Kennerly v. Nash, 1 Stark. 452 (2 E. 0. L. R ). (1) Retracing the name of obligor which has faded or been blotted with ink and obscured does not avoid the obligation. Dunn v. Clements, 7 Jones (Law), 58. To write over with ink words written in pencil is no material alteration. Reed v. Roark, ,14 Texas, 329. When a third person who had written the note, and with whom it was left, in good faith changed the date, but on its being disapproved by the maker restored the original date, it was held that he was liable on the note. Collins V. Makepeace, 13 Indiana, 448. Noting the residences of indorsers after their namgs does not affect its identity, nor avoid it as to any of the parties to it. Struthers v. Kendall, 5 Wright, 214. The holder of a bill indorsed " A. B., Cashier," may add the name of the bank. Bank of Genesee v. Patchin Bank, 3 Kernan, 309. The introduction of a dollar mark, followed by numerals, which may be omitted without affecting its sense, does not impair the validity of a note. Houghton T. Francis, 29 Illinois, 244. OF, THE ALTERATION OF A BILL OR NOTE. 477 value ; it was held that, as the accommodation parties could not sue upon it inter se, it was not, till it came into the hands of a holder for value, an available instrument, and therefore that an alteration before that time did not vitiate it. " The question," says Abbott, C. J., " is, whether this alteration made it a new bill ? Now, undoubtedly, when an accommodation bill has the diiferent parties written upon it, it is, in some sense of the word, a bill of exchange ; but it is utterly unavailable as a security for money, until it is issued to some real holder for a valuable consideration. It first became a bill of exchange when it was issued to the indorsee for a valuable consideration." "Here," adds Best, J., " at the time when the alteration was made, the bill was a perfect bill in form, but it did not constitute a valid contract between the parties. A bond is a perfect instrument before delivery ; but still an alteration made before delivery will not vitiate \t."[p) But, if either payee or indorsee have given value for it, so that the drawer is liable, an alteration, though before acceptance, vacates the bill. " In such a case," says Lord Ellenborough, " it does not remain in fieri till acceptance. As to the drawer, it was before then a per- fect instrument, (g-) When the date was altered, a new bill was drawn, and that could not be done without a new stamp. "(r) So, if a, promissory note be signed by A., and subsequently by B., as surety for A., whilst the note is in the hands of a payee, it will be void, unless the signature of B. is in pursuance of a previous agree- ment at the time of *making the note.(s) And an altered bill will be void in the hands of an innocent indorsee, as ■- -• well as in the hands of parties cognizant of the alteration. (<) If, again, the alteration were merely to correct a mistake, or to make a bill what it was originally intended to be, it will not avoid it under the Stamp Act. Thus, where the drawee intended to make the bill negotiable, and indorsed it over, but had omitted the {p} Downes t. Richardson, 5 B. & Aid. 674 (7 E. C. L. B.) ; 1 D. & R. 332, g. c; Tarleton t. Shingler, 1 0. B. 812 (62 E. C. L. B.). As to the alteration of a deed after execution by one party, see Jones t. Jones, 1 0. & M. 721 ; before complete delivery, Spicer v. Burgess, 1 C, M. & R. 129 ; 4 Tyr. 598, s. o. (g) Walton v. Hastings, 4 Camp. 223; 1 Stark. 215 (2 B. C. L. E.), s. c. (r) Outhwaite v. Luntley, 4 Camp. 179. («) Clerk V. Iflackstock, Holt, N. P. C. 474 (3 E. C. L. R.). See Ex parte White, 2 Deac. & Chit. 334. (t) Outhwaite t. Luntley, 4 Camp. 179. 478 OP THE ALTERATION OF A BILL OB NOTE. words "or order" their subsequent insertion in pursuance of the original intention was held not to vacate the bill.(M). So, where a hill having been dated, by mistake, 1822, instead of 1823, the agent of the drawer and acceptor, to whom it had been given to be delivered to the indorsee, without their knowledge or consent, cor- rected the mistake ; it was held, that such alteration did not vacate the bill,(a;) So, again, a man who has agreed beforehand to be a surety, may, after the advance to anotlier maker, sign the note.(^) A bond fide holder of a bill of exchange, accepted payable to , or order, may insert his own name as payee, and indorse it, and the bill may be declared on as payable to the party who has inserted his name. "One," says Best, C. J., "who accepts a bill in this form, undertakes to be answerable for it in the shape of a bill. That being so, he undertakes to be answerable for it in the form which a bond fide holder has a right to give it, and the description in the declaration is made. out against hina. No new stamp is necessary ; the first stamp gives authority for the inser- tion. "(g) Whether the intent of the alteration were to vary the original contract, or merely to correct a mistake, is a question of fact for the jury.(a)(l) An alteration by the drawer and payee of the bill, or the payee of a note, though it avoids the instrument, does not extinguish the r*m '^1 ^^^^ '(^) ^^^ *^ alteration by an indorsee *not only avoids the security as against all parties, but also extinguishes the debt due to the indorsee from the indorser.(e) For it would be (a) Kearshaw v. Cox, 3 Esp. 246 | 10 East, 437 ; Jacobs v. Hart, 2 Stark. 45 (3 E. C. L. R.) ; 6 M. & Sel. 142, s. o. ; Bjrom v. Thompson, 11 Ad. & Ell. 31 (39 B. C. L. E.) ; 3 P. & D. VI, s. 0. {x) Brutt T. Picard, R. & M. 3T. \y) Dodge v. Pringle, 29 L. J., Exch. 115. («) Attwood v. Griffia, R. & M. 425 ; 2 C. & P. 368 (12 E. C. L. R.), s. 0. (a) Ibid. (b) Sutton V. Tooraer, 7 B. & C. 416(14E. 0. L. R.); 1 M. & R. 125, s.c; Atkin- son V. Hawdon, 2 Ad. & E. 628 (29 E.G. L. R.) ; 4 N. & M. 409 ; 1 H. & W. 77, s. c; see Slowman v. Cox, 1 C, M. & R. 471 ; 5 Tyr. 174, s. o. Unless the bill or note were taken in satisfaction of the debt. McDowall v. Boyd. 17 L. J., Q. B. 295. . (c) Alderson v. Langdale, 3 B. & Ad. 660 (23 E. C. L. R.). (1) The acceptor of a bill may alter the date before he accepts, and if this be concurred in by the other parties, it will bind them. Ratcliff v. Planters' Bank, % Sneed, 425. OF THE ALTERATION OF A BILL OR NOTE. 479 unjust that the indorsee should compel the indorser to pay his debt, when the indorsee has destroyed the instrument on which alone, in some cases, and on which preferably in all cases, the indorser should sue. To make the indorser liable on the consider- ation and give him a cross action against the indorsee for the alter- ation, would be to oblige him to rely on the indorsee instead of the antecedent parties, and to prove a fact of which he might have no evidence ; it would besides introduce a needless circuity of action. A bond fide transferee for value of an altered bill is in no better position as to his remedy on the bill than his transferer. ( and the figures 52 : 2. It was presented and the bankers • paid it. Held, that the improper mode of filling up the. check had invited P^qoAT t^6 forgery, and, *therefore, that the loss fell on the cus- tomer and not on the banker.(e) So, if the acceptor of a bill tear the bill in two animo caned- landi, and the pieces are picked up in his presence and afterwards joined together so as to convey no notice of the cancellation to a stranger, a bond fide indorsee for value may acquire a title. (/) (c) But a banker who pays a draft on himself, payable to order on demand, need not prove the genuineness of the first or any subsequent indorsement. 16 & 17 Vict. 0. 59, s. 19. (d) Hall T. Fuller, 5 B. & 0. 750 (11 E. C. L. R.) ; 8 D. & Ry. 465, s. o.j Smith V. Mercer, 6 Taunt. V6 (1 B. C. L. R.) : 1 Marsh. 453, s. o. (e) Young v. Grote, 4 Bing. 253 (13 E. C. L. R.) ; 12 Moore, 284, s. c. See Ingham v. Primrose, 28 L. J., 0. P. 294; 1 C. B., N. S. 82 {91 E. C. L. R.),,s. c; Ex parte Swan, 30 L. J., C. P. 113 ; 7 C. B., N. S. 400, s. o. ; Orr v. Union Bank of Scotland, 1 Macq. H. of L. Cases, 513 ; British Linen Company v. Caledonian Insur- ance Company, 4 Macq. H. of L. Oases, 107 ; Foster t. Green, 6 Hnrlst. & Norm. 163. And it has been held that a principal who, through his own agent, sends money to his creditor, which is misapplied by the agent, is not responsible any further to the creditor, if the creditor's condiTct facilitated the agent's fraud. Hors- fall v. Fanntleroy, 10 B. & C. 755 (21 B. C. L. R.). (/) Ingham T. Primrose, supra. This doctrine of estoppel has never been extended to instruments under seal. Such an extension was attempted in Ex parte Swan, 30 L. J., C. P. 113 ; 7 C. B., N. S. 400 (97 E. C. L. R.), s. 0. But the Court of Common Pleas .being equally divided, the rule dropped. The Court of Exchequer Chamber held that there was no estoppel. Ibid., 32 L. J., Exch. 273. op THE FORGERY OF BILLS AND NOTES. 491 It is a general rule of law, that money paid under a mistake, as to - facts, may be recovered back. On this principle, if a forged note be discounted, the transferee, on discovery of the forgery, may recover back the money paid, the imagined consideration totally failing.(^) But any fault or negligence on the part of him who pays the money on the note will disable him from recovering. Thus, where two bills of exchange falling due at diiferent times were 'drawn on a man, and he paid, the first without acceptance, and accepted and paid the second, and the signature of the drawer was some time afterwards discovered to be a forgery, Lord Mansfield held that an acceptor is bound to know the handwriting of the drawer, and that it is rather by his fault or negligence than by mistake, if he pays on a forged signature. (A) So, where a forged acceptance of the drawee was made payable at the plaintiff's, the drawee's bankers, and they paid the amount to the defendant, as a bond fide holder, but seven days afterwards, upon discovering the acceptance to be a forgery, informed the defendant of it, and demanded the money ; it was held that they could not recover, for that a banker ought to know his customer's handwriting. Part of the Court held the defendant discharged, on the *ground i-jcooc-i that, by the plaintiff 's delay in giving notice of the forgery, he had lost his remedy against the antecedent . parties. (i) Where Ihe fault is not entirely on the side of the party paying, he may still recover. Certain bills of exchange, purporting to bear, amongst others, the indorsement of A., were refused payment; the notary took them to the plaintiff, the London correspondent of A., and asked him to take up the bills for A.'s honor. The plaintiff, ac- cordingly, paid the money to the defendants, holders of the bills, and struck out all the indorsements subsequent to A.'s. The same morning it was discovered that the respective signatures of A., the drawer, and acceptor, were forged. Plaintiff immediately sent no- tice to the defendants, in time for them to advise their indorser. The Court held, that the plaintiff was entitled to recover his money back, and said, " A bill is carried for payment to the person whose name appears as acceptor, entirely as a matter of course. But it [g) Jones v. Eyde, 5 Taunt. 488 (IE. C. L. R.) ; 1 Marsh. 157, s. o. ; Bruce v. Bruce, 5 Taunt. 495; 1 Marsh. 165, s.'c; Gurney v. Womersley, 4 E. & B. 133 (82 E. 0. L. E ). (A) Price v. Neal, 3 Burr. 1354; 1 W. Bl. 390, s. o. (i) Smith r, Mercer, 6 Taunt. 76 (1 E. C. L. R.) ; 1 Marsh. 453, s. o. ' See, as to delay, Pooley v. Browne, 11 0. B., N. S. 566 (103 E. C. L. R.). 492 OF THE FOEGERT OP BILLS AND NOTES. is by no means a matter of course to call upon a person to pay a bill for the honor of an indorser; and such a call, therefore, im- ports, on the part of the person making it, that the name of a correspondent, for whose honor payment is asked, is actualiyibn the bill. The person thus called upon ought, certainly, to satisfte himself that the name of his correspondent is really on the bill; but still, his attention may reasonably be lessened by the assertioa that the call itself makes to him in fact, though no assertion may be made in words. And the fault, if he pays on a forged signa- ture, is not wholly and entirely his own, but begins, at least,--with the person who thus calls upon him. And though, where all the negligence is on one side, it may, perhaps, be unfit to inquire into the quantum ; yet, where there is any fault in the other party, and ■ that other party cannot be said to be wholly innocent, he ought not, in our opinion, to profit by the mistake into which he may, by his o^wn prior mistake, have led the other ; at least, if the mistake be discovered before any alteration in the situation of any of the other parties ; that is, whilst the remedies of all parties entitledto remedy are left entire, and no one is discharged by laches^ We think . the payment, in this case, was a payment by mistake, and without consideration, to a person not wholly free from blame.i| The striking out an indorsenient by mistake cannot, in our opinion,,;| discharge the indorser."(^) Where bankers who had paid a forged bill gave notice of the forgery, and demanded the money by one o'clock in the *afternoon of the following day, the Court took time to L J consider, and at length unanimously held, that the money could not be recovered back. " In this casfe," they say, " we gifgj;;; no opinion upon the point, whether the plaintiffs would have been entitled to recover if notice of the forgery had been given to the defendants on the very day on which the bill was paid, so as to enable the defendants on that day to have sent notice to other parties on the bill. But we are all of opinion that the holdsr of a : hill is entitled to know,' on the day when it heeatne due, whethm& is an honored or dishonored bill; (I) and that if he receives the (4) Wilkinson v. Jobinson, 3 B. & 0. 428 (10 E C. L. R.) ; 5 D. & Ry. 403, s. 0. (i) But if a banker, on whom a check is drawn, be also the banker of the holder, who pays in the check without any intimation of the character In which he desiress the banker to receive it, whether as drawee, or as his, the holder's, agenl;, it will be presumed that the banker took it as the agent of the holder, and therefore the OF THE STATUTE OF LIMITATIONS, ETC. 493 money, and is suffered to retain it during the whole of that day, the parties who paid it cannot recover it back. The holder, indeed, is not bound by law (if the bill be dishonored by the acceptor) to take any other steps against the other parties to the bill till the day after it is dishonored. But he is entitled so to do if he thinks fit ; and the parties who pay the bill ought not, by their negligence,' to deprive the holder of any right to take steps against the parties to the bill on the day when it becomes due."(OT) (1) In an action on a forged bill, a Judge, on an affidavit of the for- gery, will order that the, defendant and his witnesses mayinspect it, the defendant giving to the plaintiff a list of the witnesses to whom he proposes to exhibit it.(w) *OHAPTER XXVI. [*327] OF THE STATUTE OF LIMITATIONS IN ITS APPLICATION TO BILLS AND NOTES. POLICY OF THE LiW . WHEN INTEODUOED . THE PRESENT STATUTE DIVISION OP THE SUBJECT . 327 . 328 . 328 . 328 OENBRAL OPERATION OP THE STATUTE 329 DOES NOT DESTROY THE DEBT . . 329 FOREIGN STATUTE OP LIMITATIONS . 330 WHAT LEGAL PROCEEDINGS IT LIMITS . 330 merchants' ACCOUNTS .- . . 330 EPPEOT OP STATUTE ON TITLE OP A SUBSEQUENT TRANSFEREE . . 330 WHEN IT BEGINS TO BUN . . . 331 banker may, in the course of the next day, inform the holder that there are no effects, and that the check will not be paid. Boyd v. Emmerson, 2 Ad. & Ell. 184 (29 B. C. L. R.) ; 4 N, &. M. 99, s. c; and see Kilsby v. Williams, 5 B. & Aid. 815. (7 E. 0. L. R.);.l D. & 0. 476, s. c; Pollard v. Ogden, 2 E. & B. 459 (75 E. C. L. R.). (m) Cocks V. Masterman, 9 B. & C. 902 (17 B. C. L. R.) ; 4 M. & Ry. 676 ; Dans. & LI. 329, s. c. ; and see Mather v. Lord Maidstone, 18 C. B. 273 (86 E. 0. L. R.) ; 25 L. J., 0. P. 311, s. c; Pollard v. Ogden, 2 E. & B. 459 (75 B. 0. L. R.). (m) Post, Chapter onActions, and see Thomas v. Dunn, 6 M. & G. 274. It may even be done without an affidavit. Woolner v. Devereux, 9 Dow. 672. (!) Where a party became the holder of a forged draft before it had been ac- cepted, and afterwards it was a,ccepted and paid, and the acceptors immediately, upon ascertaining the fact of the forgery, gave notice of the fact to the holder, it was held that the acceptors were not estopped from proving the forgery and recovering back the money they had paid through error. McKleroy v. Southern Bank, 14 Louisiana Annual, 458. 494 OF THE STATUTE OF LIMITATIONS ON BILL PAYABLE AFTBE DATE . .331 PAYABLE ON A CONTINSENOY . .331 PAYABLE BY INSTALMENTS . .331 AGAINST AN ADMINISTRATOR . . 331 ON A BILL AT OR AFTER SIGHT . . 331 BILL PAYABLE ON DEMAND . . 332 AFTER DEMAND .... 332 IN CASE OF FRAUD .... 332 IN THE CASE OF AN ACCOMMODATION BILL 333 Vhbn there has been both non- aocbptanob and non-payment . 333 dp. to what period the time of limitation is computed . . . 333 death of parties after action . 333 how the operation of the statute is obviated by issuing a writ . 334 the saving clause .... 335 INFANTS 335 IMPRISONMENT 335 plaintiff's ABSENCE BEYOND SEAS . 335 defendant's ABSENCE BEYOND SEAS . 336 SUCCESSIVE DISABILITIES . . . 336 WHAT ACKNOWLEDGMENTS WILL TAKE A DEBT OUT OF THE STATUTE . . 336 LORD TENTERDEN'S ACT . . . 337 DIVISION OF THE SUBJECT . . . 337 OF WHAT SORT THE ACKNOWLEDGMENT MUST BE 337 EVIDENCE OF DATE . . ' . .338 CONSTRUCTION . . . l . .339 MUTUAL RUNNING ACCOUNT . . 339 DEVISE 339 ACKNOWLEDGMENT BY EXECUTORS . 339 NOTICE IN NEWSPAPERS . . .340 PART PAYMENT . ... . .340 APPROPBIATIOS OP PAYMENTS . . 340 PAYMENT BY BILL . . . .340 PAYMENT BY GOODS . . . .340 STAMP ON ACKNOWLEDGMENT . . 341 STATEMENT OF ACCOUNT . . .341 PAYMENT OF INTEREST , . . . 341 WHEN ACKNOWLEDGMENT, MUST BE MADE 341 PAYMENT OP MONET INTO COURT . 342 BY WHOM ACKNOWLEDGMENT MUST BE MADE 342 TO WHOM . . .... 345 WHAT EVIDENCE IS REQUIRED OF THE ACKNOWLEDGMENT . . .345 HOW THE STATUTE IS TO BE TAKEN ADVANTAGE OF . . . .347 FORM OF THE PLEA . . . .34? REPLICATION OF THE STATUTE . . 347 REPLICATION TO .A PLEA OF THE STA- TUTE ...... 348 WHEN, INDEPENDENTLY -OF THE STA- TUTE, LAPSE OF TIME IB A BAB . 348 Without a limitation of actions no inan can be secure in the en- joyment of his property. Prescription is the original *source L J • of all title. After the lapse of years, evidence is weak- ened or destroyed. And a claimant who has long slept on his de- mand has no right to complain, if; for the public advantage, it is at length taken from him. In practice it is found that no statutes are so useful as those of limitatioii, compelling, as they do, in- vestigation, whilst the means of investigation subsist, and supply- ing the loss of those means, by a general act of settlement, cable to each, man's case. Though an act of limitation, in respect to real property, was passed in this country in the year 1270, yet, partly from the com- paratively inconsiderable amount of personal property, partly from the frequency of the sales in market overt, and partly from the IN ITS APPLICATION TO BILLS AND NOTES. 495 circumstance, that debts above 40«. were commonly secured by bond or single bill, and debts below that amount were not tried in the superior Courts, no limitation to personal actions was introduced till the year 1623, when the present Statute of Limitations of personal actions (the 21 Jac. 1, c. 16) was passed. The enactments of that statute, so far as they are applicable to our present purpose, are as follows : By s. 3, all actions on the case (other than such accounts, (a) as concern the trade of merchandise between merchant and merchant, their factors and servants), and all actions of debt, grounded on any lending or contract without specialty, must be brought within six years of the cause of such actions, and not after. By s. 4, if judgment for the plaintiff be arrested oi* reversed, or the defendant be outlawed and afterwards reverse the outlawry, the plaintiff, or his executor, may commence a new action within a year. Section 7 provides, that if any person entitled to the action shall, at the time of the cause of action accrued, be, first, an infant, secondly, feme covert, thirdly, non compos mentis, fourthly, im- prisoned, or, fifthly, beyond the seas, then such person may bring the action within six years after their full age, discoverture, sound memory, enlargement, or return from beyond the seas. In treating of the effect of this statute, in its relation to bills and notes, we shall consider, 1, its general operation, and whether it destroys the debt or only bars the remedy ; 2, what actions or legal proceedings on those instruments it limits ; 3, from what period the statute begins to run ; 4, to what period the time of limitation is computed ; 6, how the *statute may be avoided by issuing a writ and continuing it down ; 6, the proviso '-''-' as to persons laboring under disabilities; 7, what promises, ac- knowledgments, or payments, will take a bill or note out of the statute ; 8, how the statute is to be taken advantage of; and, lastly, when, independently of the statute, lapse of time will be a bar to an action on a bill or note. First, as to the general operation of the statute. The Statute of Limitations is a good plea in equity as well as at law. It is also an answer to proof under a petition for adjudication («) The exception of merchants' accounts is repealed by 19 & 20 Vict. o. 97, s. 9. 496 OF THE STATUTE OP LIMITATIONS in bankruptcy. (6) It was formerly a doubt whether the statute was a bar in the Admiralty Courts to a suit for seamen's wages.(c) But that doubt was removed by 4 Anne, c. 16, s. 17, which enacts, that all suits and actions in the Court of Admiralty for seamen's wages shall be commenced and sued within six years next after the cause of such suits or actions shall accrue, and not after. The Statute of Linlitations does not destroy a debt, but only bars the remedy.(c?) Therefore, it must in all cases be pleaded, and cannot be given in evidence, even under the plea of nil debet, or the replication of nil debet to a set-offi(e) ■ Therefore, also a promissory note more than six years old, though not a good peti- tioning creditor's debt as against the bankrupt (who may object that the remedy by a petition in bankruptcy, as well as by action, is taken away), is nevertheless a good petitioning creditor'sdebt, as against strangers.(/) "It is settled." says Lord Mansfield, "that the Statute of Limitations does not destroy the debt, it only takes away the remedy ; the objection lies in the mouth of the bankrupt himself, but not in the mouth of a third person. "(^) Therefore, again, a lien may be enforced,(A) where an action for its amount would be barred by the statute. ^ „ „ *A foreign Statute of Limitations is no defence to an r 3301 . . ■- -I action on a foreign contract in the English Courts, unless it have the effect of extinguishing the contract, and the parties are living in a foreign country at the time of the extinction. For a Statute of Limitations usually affects the remedy merely, and not the construction of the contract, (i) (b) Ex parte Dewdney, 15 Ves. 479. (c) Ewer v. Jones, 6 Mod. 25. {d) Ae to an agreement not to relj on the statute, see Bast India Company v. Paul, 14 Jur. 253 ; T Moo. P. C. C. 85 ; Lade v. Trill, 6 Jur. 272 ; Waters T. Thanes, 2 Q. B. V57 (42 E. 0. L. R.). (e) Chappie y. Durston, 10 & J. 1, overruling the opinion of Lord Holt at Hert- ford Assizes, 1690 ; Anon., 1 Salic. 278 ; Draper v. Glassop, 1 Ld. Rajm. 153. (/) Swaine v. Wallinger, 2 Stra. 746. {g) Quantock v. England, 5 Burr. 2628 ; 2 W. B.l. 703, s. 0. See the same doc- trine laid down by Lord Ellenborough and Bayley, J., in Williams v. Jones, 13 Bast, 450 ; and by the Court of Exchequer, in Chappie v. Durston, 1 C. & J. 1 ; Mavor T. Pyne, 2 0. & P. 91 (12 E. C. L. R.). (A) Spears v. Hartley, 3 Esp. 81. («■) Huber v. Steiner, 2 Bing. N. 0. 202 (29 B. C. L. R.) ; 2 Scott, 304, s. c. See the Chapter on Foreign Law. IN ITS APPLICATION TO BILLS AND NOTES. 497 • Secondly, as to the actions and legal proceedings which the sta- tute limits. It will be sufficient for the present purpose to remark that ac- tions of debt and of assumpsit are limited to six yea,rs.{7c) That though the statute does not in terms apply to proceedings in equity, courts of equity adopt its provisions as a' rule. (Z) "With regard to that statute," says Sir William Grant, " though it does not apply to any equitable demand, yet equity adopts it, or at least takes the same limitation, in cases that are analogous to those in which it applies in law."(?M) But the statute does not bar a trust(w) nor a legacy. (o) We have already seen that the statute is a bar in bank- ruptcy. The exception, as to merchants' accounts (which, as we have seen, is now repealed), applied only to an action of account, or per- haps, also, to an action on the case for not accounting, but not to an.action of indebitatus debt, or assumpsit.(p)(l) It is conceived, that if the statute have rtin out against the holder of a bill or note, payable at a day certain, and he then transfers it, the transferee's right of action is barred. For he, as transferee of an overdue bill, can stand in no better situation than his transferer. He, like his transferer, has a debt due to him, but has lost the right of action, and has notice of the loss of it.(g') ' And, perhaps as to the Statute of Limitations, the holder for the time being is a trustee of the action, so that prior or subsequent (S) Sect. 3. II) Johnson y. Smith, 2 Burr. 961 ; Prince t. Heylln, 1 Atk. 493. (m) Starhouse v. Bamston, 10 Ves. 466. (b) Heath v. Hanley, 1 Oha. Ca. 20. (o) Anon., 2 Freem. 22. (p) Inglis V. Haigh, 8 M. & W. 169; and see Cottam v. Partridge, 4 M. & G. 271 (43 E. C. L. R.) ; 3 Scott, N. R. 174, s. c. (?) See Soarpelini v. Atcheson, 7 Q. B. 864 (53 E. C. L. R.). .(1) Phillips V. Cage, 12 Smedes & Marshall, 141. Contra, Mandeville v. Wilson, 5 Cranch, 15 ; Brackenridgs v. Baltzell, 1 Smith, 217. As to what are merchants' accounts, Slaoumbs v. Holmes, .1 Howard, Miss. 786 ; Pox v. Pish, 6 Ibid. 328 ; Bevan v. CuUen, 7 Barr, 281 ; Brackenridge v. Baltzell, 1 Smith, 217 ; Marseilles v. Kenton's Exch., 17 Penna. State Rep. 238. The exception is available in merchants' accounts though none of the items come within six years. Bass t. Base, 8 Pick. 187 1 Dyott'v. Letcher, 6 J. J. Marshall, 541 ; McLellan v. Crofton, 6 Greenl. 308. ' 32 498 OF THE STATUTE OF LIMITATIONS indorsees are, as between themselves and earlier parties, prejudiqed by his laches, (r) ' *Thirdly, as to the time from -which the statute runs. [ 661] rj,^^ Statute of Limitations begins to run on a bill or note, as well as on any other contract, from the time that the action(«) first accrued to the party. (1) Therefore, on a bill payable at a certain period after date, the statute runs, not from the time the bill was drawn, but from the time when it fell due.(i) And this is so also as to the accouDt stated, of which the bill" may be evidence, (m) So, where the maker of a note gave it to a third person, to be delivered to the payee after certain events should happen, the statute was held to run, not from the date of the note, but from the time of its delivery to the payee.(a;) It is conceived, that if a note be payable by instalments, and con- tain a provision that, if default be made, in payment of one instal-. ment, the whole shall be due, the statute runs from the first default against the whole amount of the note.(^) And so in an action on a bill by an administrator, who had not taken out administration till after the bill became due, it was decided that the statute ran, not from the time the bill fell due, but (v) See Webster v. Kirke, IT Q. B. 947 (79 E. C. L. R.). (s) Though at that time an action and judgment would have been fruitless. Emer? V. Day, 1 C, M. & R. 2i5 ; 4 Tyr. 695, s. 0. (() Wittersheim t. Lady Carlisle, 1 H. Bl. 631. (m) Fryer T. Roe, 12 C. B. 437 (74 B. C. L. R.). (x) Savage v. Aldren, 2 Stark. 232. (y) See Hemp v. Garland, 4 Q. B. 519 (48 E. 0. L. R.). (1) It begins to run only from the time the right of action accrued. Richmany. Richman, 5 Halsted, M4 ; Odlin v. Greenleaf, 3 N. Hamp. 270 1 Banks v. Coyle, 2 Marshall, 564; Jones v Conway, 4 Yeates, 109; Bennett v. Herring, i Branch, 387; Dobyns v. Schoolfield, 10 B. Monroe, 311. It begins to run from, the last day of grace. Pickard v. Valentine, 1 Shepl. 412. It does not begin to run against a bill of exchange made payable at a particular place, until after a demand at such place and a dishonor there. Picquet v. Curtis, 1 Sumner, 47B. IN ITS APPLICATION TO BILLS AND NOTES. 499 from the time of granting letters of administration, for there can be no action till there is a party capable of suing.(s)(l) As upon a bill drawn payable at or after sight, there is no right of action till presentment ; so without such presentment the statute does not begin to run. (a) If a note be payable at a certain period after sight,(6) the statute runs from the expiration of that period, after the exhibition of the note to the maker. *But we have seen, that if a bill or note be payable on demand, the words "on demand" are held not to consti- ^ -^ tute a condition precedent, but> merely to import that the debt is due and payable immediately ;(c) or, at any rate, an action is suf- ficient demand. Therefore on a bill or note payable on demand,, unless the note be accompanied by some writing restraining or postponing the right of action, the statute runs from the date of the instrument, and not from the time of the demand. ((i)(2) Where («) Murray v. East India Company, 5 B. & Al. 204 (T E. C. L. R.). But this interval is now to be computed where tlie administrator claims a chattel real, 3 & 4 Will. 4, c. 21, s. 6. The statute runs against an exeeutor from the time the bill falls due, for he can commence an action before probate. (0) Holmes v. Kerrison, 2 Taunt. 323. (6) Sturdy v. Henderson, 4 B. & Al. 592 (6 E. C. L. K.); Sutton v. Toomer, T B. tc 0. 416 (14 B. C. L. R.); 1 M. & Ry. 125, s. 0. ; Holmes t. Kerrison, 2 Taunt. 323 | and Bee Dixon v. Nuttall, I C, M. & E. 307 j 6 C. & P. 320 (25 E. C. L. K.), a. 0. (c) Oapp T. Lancaster, Cro. Bliz. 548; Eumball v. Ball, 10 Mod. 38 ; Collins v. Benning, 12, Mod. 444; M'Intosh v. Haydon, R. & M. 363 (21 E. C. L. R.). (o!) Christie v. Fonsick, Sel. N. P. 9th ed. 351. This case is said to have been overruled in K. B., sed gucere. If, indeed, a bond is conditioned to be void on pay- ment on demand, a demand must be proved, or the bond is not forfeited. Carter v. Ring, 3 Camp. 459. In Megginsou v. Harper, 2 C. & M. 322 ; 4 Tyr. 94, s. c, it was assumed that the statute ran from the date of the note which was payable on demand. Qr,cere iamen, if the note be a reissuable one, and reissued, or if it be payable at a particular place. '.»» , ■ ^^-^ ^ (1) Where an action does not accrue until after the death test the creditor, the statute does not begin to run until administration is granted, but i^lif accrues before his death the running is not thereby suspelided. Beauchamp v. Itludd, 2 Bibb, 537 ; Hobart v. Connecticut Turnpike Co., 15 Conn. 145 ; Jackson v. Hitt, 12 Vermont, 285 ; Abbott v. McElroy, 10 Smedes & Marshall, 100. Where A. has a demand against B. which is not barred, and B. dies intestate, the statute will not begin to run until letters of administration are taken out. Burnet v. Bryan, 1 Halsted, 377. The running of the statute against a claim on the estate of a person deceased is suspended during the time in which the administrator is not liable to an action thereon. Houpt v. Shields, 3 Porter, 247., (2) In general the statute begins to run from the date of a niOJte 'payable on. 500 OF THE STATUTE OF LIMITATIONS « a note payable on demand was given to a bank, accompanied by an agreement that the note should be held as a security for advances, the Court of Excheqtier decided, in a recent case, that the statute did not begin to run against the note till after advances made, and a claim made as for a debt. The learned judge, however (Mr. Baron Martin), who tried the case, appears to have thought other- wise, or, at least, to have doubted, and perhaps not without reason. If a note is made payable at a e^t/mi period after demand, it is like a note payable after sig}iU^m^Aema,iid and > the lapse of the specified time after the demariaroiM^^nditions, precedent, and the statute runs from the time yUmJOmj^^sJ?iis~dm.{e) And, if a bill be made payable twel/eTSwrms ap^ notice, the statute does not begin to run till after notice ^d the twelve months subse- ,quent.(/)(l) It has been suggested that where the plaintiff has been the subject of fraud, he may by a special replication avoid a plea of the statute, and postpone its application. (^)(2) It is now, however, settled that such a replication is bad. (A) But possibly the fraudu- (e) Thorpe v. Booth, R. & M. 388 (21 E. C. L. E). (/) Clayton v. Gosling, 5 B. & 0. 360 (11 E. C. L. R ) ; 8 D. & Ky, 110, B. o. (g) South Sea Company v. Wymondsell, 3 P. Wms. 143 ; Bree v. Holbech, Doug. 630 ; Clark T. Hougham, 2 B. & C. 149 (9 B. C. L. R.) ; 3 D. & Ry. 322, s. 0.; Bx parte Bolton, 1 Mont. & Ayr. 60 ; Granger v. George, 5 B. & C. 149 (11 E. 0. L. R.) j Browne v. Howard, 2 B. & B. 13 (6 E. C. L. R.). ' (A) Imperial Gas Company y. London Gas Company, 10 Exch. 39. demand. Easton v. McAllister, 1 Missouri, 662 ; Larason v. Lambert, 7 Halsted, 247 ; Newman v. Kettell, 13 Pick. 418; Wenman v. Mohawk Ins. Co., 13 Wendell, 267 ; Wilks v. Robilfejn, 3 Richardson, 182 ; Hill v. Henry, 17 Ohio, 9. But see Wolfe V. Whitenjgji/t Harrington, 246. Where reasonable presentment of a draft on demand isTafaade, the statute does not commence to run as against the drawer, until payment is Abused by the drawee. Wood v. McMeans, 23 Texas, 481. (1) In case de. * note payable at a given day after demand, it commences to run only from the time of the demand. Wenman v. Mohawk Ins. Co., 13 Wendell, 267; Little T. Blunt, 9 Pick. 488 ; Wright v. Hamilton, 2 Bailey, 51. (2) In a contract tainted with fraud, the statute runs from the time of its dis- covery. Pennock v. Freeman, 1 Watts, 401 ; Sherwood v. Sutton, 5 Mason, 143 ; Turnpike v. Field, 3 Mass. 201; Miles v. Berry, 1 Hill, s. o. 296; Frankfort v. Mark- ley, 1 Dana, 373 ; Cole v. McGlathry, 9 Greenleaf, 131. A fraudulent concealment of the plaintiff's cause of action will not protect him against the operation of the statute. Smith v. Bishop, 9 Vermont, 110; Fee v. Fee, 10 Ohio, 469; Allen v. Mille, .17 Wend. 202 j Baines v. Williams, 3 Iredell, 481. IN ITS APPLICATION TO BILLS AND NOTES. 501 lent concealing of a cause of action *on the part of a defendant till the plaintiff's rem a substantive ground of action. defendant till the plaintiff's remedy is gone, may constitute '- -■ Upon the contract which the law implies to indemnify an ac- commodation acceptor, it has been'held, that the statute begins ip run from the time at which the plaintiff' is damnified by actual pay^ ment.(i)(l) If a bill be dishonored by non-acceptance, and afterwards by non-payment, the statute runs from the refusal to accept. (A) Fourthly, as to the period up to which the time of limitation is computed.(2) The words of the statute 21 Jac. 1, c. 16, s. 3, are, all actions of trespass, &c., shall be eommenced and sued within six years, &c. Therefore, when, according to the old practice, writs bore teste of a day before the day of issuing them, it was held, that the time within which the action should be brought must be computed not to the teste but to the issuing of the writ.(Z) At present no difficulty on this subject can exist, as the date and teste of a writ are the same.(m) (j) Eeynolda v. Doyle, 1 M. & G. T53 (39 B. 0. L. R.) ; Oollinge v. Heywood, 9 Ad. & E. 633 (36 B. 0. h. R.) ; but see Webster v. Kirk, IV Q. B. 944 (79 B. C. L. R.). (A) Whitehead v. Walker, 9 M. & W. 506- {l) Johnson v. Smith, 2 Burr. 950 (m) 2 Will, i', c. 39, s. 12. , (1) When a surety on "■ promissory note pays it before maturity, his cause of action accrues against his principal for indemnity only when the note becomes pay- able. Tillotson 7. Rose, 11 Mete. 299 ; Farmers' Bank v Gibson, 6 Barr, 57 ; Jack- son T. Adamson, 7 Blackford, 597. Where one not a party to a note divides with the maker the consideration for which it was given, promising the maker to pay his half of the amount when the note becomes due, the statute will begin to run in bar o£a suit for a breach of this promise, as soon as the note becomes due and unpaid; nor will its subsequent payment in full, by the maker, raise an implied assumpsit to him by the party who made such promise for money paid and advanced. Joiner v. Perry, 1 Strobhart, 76. Interest is never barred till the principal is. Thus, if in- terest is payable yearly, on a note having several years to run, the statute does not begin against the interest until the principal is due. Grafton Bank v. Doe, 19 Ver- mont, 463. (2) The day on which the cause of action accrued is to be included, as an action might have been commenced on that day. Presbrey v. Williams, 15 Mass. 193. In computing time under the statute, the first day is to be excluded, and the last to be included. Smith v. Cassity, 9 B. Monroe, 496. 502 OF THE STATUTE OF LIMITATIONS Where an action is commenced in an inferior court, and removed into a superior court, the,time of limitation is to be computed only to the commencement of the action in the inferior court.(M) To bar a set-oflF the six years must have expired before action' brought.(>)) When the statute once begins {o run, it never stops, except in the cases mentioned in the fourth section, although circumsti^pt should arise in which it is impossible to sue, as if, for example, the debtor die before action, and no executor be appointed, (pj But where an a,ction has been commenced in time, and then the plaintiff dies, and the period of limitation has expired, the courts, r*S^41 ^y * strained construction of the statute, *have allowed the personal representatives to commence another action with- in a year from the plaintiff's death. And where the defendant dies, a year is also given, and a year from the grant of administration where there is no executor. In the case of the defendant's death, the allowance of a year rests not only on the analogy to the case of a plaintiff, but also upon the general rule that where an action abates by the act of God, the same plaintiff may have a new writ by journey's accoiints.(py) Fifthly, as to the mode in which the operation of the statute may be obviated by issuing a writ and continuing it down. According to the old practice, the plaintiff might issue a writ, and without serving' it on the defendant, keep it in his pocket, and get it returned at any time within the six years,(g') then file it (for it must have been filed), (r) and enter continuances, at any time, down to the writ on which the appearance was, and by re- plying the writ with the continuances, obviate the effect of the statute. (8)(1) (n) Bevin v. Chapman, 1 Sid. 228 ; Matthews v. Phillips, 2 Salk. 424. (0) Walker v. Clements, 15 Q. B. 1046 (69 B. 0. L. E.). Ip) Rhodes v. Smethurst, 4 M. & W. 42 ; affirmed in error,' 6 M. & W. 351, post, 336. ' {PP) Curlewis v. Lord Mornington, in error, 27 L. J., Q. B. 439. (?) Taylor v. Hipkins, 5 B & Al. 489 (7 E. 0. L. R.). (r) Harris t. 'Woolford, 6 T. R. 617. (s) The first instance of a latitat replied is in Coles t. Sybsye, Styles's R. 156, (1) The commencement of a suit to defeat the statute must" be the same suit to which the plea is pleaded. Delaplain v. Crowninshield, 3 Mason, 329 ; Soulden T. IN ITS APPLICATION TO BILLS AND NOTES. 503 But this practice was abolished by the Uniformity of Process Act.(<) By that act, no first writ afifects the operatitm of the stat- ute, unless the defendant has been arrested or served with it, or proceedings to outlawry have been had upon it, or unless the writ and every continuing writ is returned non est inventus, and entered of record within one calendar month from its expiration ; and each succeeding writ must issue within a month of the expiration of the preceding, and contain a memorandam(M) specifying the date of the first writ. The return of bailable process is to be made by the sheriff: of non-baijable, by the plaintiff or his attorney. Now, by the 15 & 16 Vio^.. c. 76, ss. 11, 12, the writ is to be renewed every six months, 'id the original writ marked with a seal bearing the date of renewal. A bill in equity, filed by one creditor on behalf of himself *and the other creditors, will prevent the Statute of Limi- r+oQc-i tations from running against any of the creditors who come in under the decree.(M') Sixthly, as to the saving clause in favor of infants, married women, lunatics, persons imprisoned or beyond seas. An infant would have been bound had he not been expressly accepted, (a;) For infants may, during the six years, sue by their guardians. (^) An infant cestui que trust is bound by the laches of his trustee, even in equity.(s) The plaintiff's imprisonment now no longer postpones the run- ning of the statute.(a) A.D. 1649 ; and see Dacy v. Clinch, I Sid. 53. As the form of the plea novr is, that the actiod did not accrue within six years before the commencement of the suit, it is-not proper to reply the writ, but to traverse the plea and give the writ in evidence by producing the roll. Diclieneon v. Teague, 1 C, M. & R. 241. [t) 2 Will. 4, c. 39, s. 10. («) Of which the roll is no evidence. Wallter v. CoUick, 4 Bxch. 171. (w) Sterndale v. Hankinson, 1 Sim. 393. (a;) Prideaux v. Webber, 1 Lev. 31. (y) Chandler v. Vilett, 2 Saund. 121, a. (z) Wych V. East India Company, 3 P. Wms. 309. ' (o) 19 & 20 Vict. t. 97, a. 10. Van Rensellaer, 3 Wend. 473 ; Davis v. West, 5 Ibid. 63 ; Sherman v. Barnes, 8 Conn. 138 ; Callis v. Waddy, 2 Munf. 511 ; Harris v. Dennis, 1 Serg. & Bawle, 236 ; Ontario Bank v. Kathbun, 19 Wendell, 291; Ivins v. Schooley, 3 Harrison, 269; Cl^eney v. Archer, Riley, 195 ; Connell v. Moulton, 3 Denio, 12. 504. OF THE STATUTE OF LIMITATIONS In the old Statutes of Limitations, passed before the union with Scotland, the saving clause in favor of absent claimants protected claimants ^'out of the realm;" but the statute 24 Jac. 1, c. 16, being after the union of the crowns, changed the expression " out of the realm," to the expression "beyond the seas." Scotland, therefore, is not within the saving,(6) but Dublin, or any other place in Ireland, India,(e) or the colonies, was. By the 3 & 4 Will. 4, c. 42, s. 7, no part of the British Isles is to be deemed beyond the seas.(d) And now, from the meaning of the expression "beyond seas," whether applied to plaintiff .or defendant, are excluded by the 19 & 20 Vict. c. 97, s. 12, all Great Britain and Ireland, the Islands of Man, Jersey, Guernsey, Alderney and Sark and the islands adjacent. Foreigners were within the benefit of this saving. "If the plaintifif," says the Court of C. P., "is a foreigner, and doth not come to England in fifty years, he still hath six years after his coming into England to bring his action. And if he never comes into England himself, he has always a right of action while he lives abroad, and so have his executors or adminis* [-^oqg-i trators *after his death."(e) If one only of several "plain- tiffs were abroad, the case was not within the excep- tion.(/)(l) But now the plaintiff's absence beyond the seas is no disability, and gives no further time.(^) This statute is not retrospective. (/*) (A) King T. TValker, 1 W. Bl. 287. (c) Parnther v. Gaitskell, 13 East, 432. (d) See Nightingale t. Adams, 1 Siiow- 91. (e) Strithorst v. Grseme, 3 Wils. 145 ; 2 W. BI. 723, s. 0. | Le Veux v. Berkeley, 5 Q. B. 836 (48 B. 0. L. R.); Townsend v. Deacon, 18 L. J., Exch. 298; 3 Exch. 706, s. 0.; Lafond v. Ruddock, 13 C. B. 813 (76 E. C. L. R.). Query, whether the executors are limited to six years after the testator's death. Townsend v. Deacon, supra. (/) Perry v. Jackson, 4 T. R. 516 ; aecus, of one of several defendants. Fannin V. Anderson, 7 Q. B. 811 (53 B. 0. L. R.). (g) 19 & 20 Vict. c. 97, s. 10. (A) Flood T. Patterson, 30 L. J., Chan. 486 j .but see Cornill v. Hudson, 8 E. & B. 429 (92 B. C. L. R.). (1) The words "beyond seas" in the statute of limitations of a state, means out of the limits of that state. Murray v. Baker, 3 Wheat. 541 ; Shelby v. Gray, U Wheat. 361 ; Bank of Alexandria v. Dyer, 14 Peters, 141 j Pancoast v. Addison, 1 Har. & Johns. 350; Richardson v. Richardson, 6 Ham. 125 ; Field v. Dickenson, 3 Pike, 409. Contra: Whitlocke v. Walton, 2 Murph. 23 ; Earle y. McDowell, 1 Dev. 16 ; Thurston v. Dawes, 9 Serg. & R. 288. IN ITS APPLICATION TO BILLS AND NOTES. 505 The defendant's absence beyond seas is not a case within the 24 Jac. 1, c. 16,(i) though it is one in which the saving is much more necessary than when the plaintiff himself is absent, as an absent plaintiff may sue a defendant in England, but a defendant beyond seas could not formerly have been sued in England at all. To remedy this hardship, the statute 4 & 5 Anne, c. 16, s. 19, enacts, that if at the accruing of the action the defendant be beyond the seas, the plaintiff may bring his action within six years after the defendant's return. A mere setting foot on English ground is not a return within the statute. (i;) If one of several eo-defendants in an action, ex contractu, were abroad, the Statute of Limitations •did not begin to run against any of them.(Z) But the statute 19 & 20 Vict. c. 97, s. 11, preserves the protection of the statute to such of the defendants as were within seas at the time of action accrued. When a disability is removed, and the statute once begins to run, no supervening disability will stop it.(m)(l) Seventhly, as to the promises, acknowledgments, or payments, which take a bill or note> out of the statute. ' ■, It was at first held, that nothing short of an express promise would take a debt out of the statute ;(m) then that a *mere r^oo^-i acknowledgiiient would, as evidenc« of a promise; and (i) Hull V. Wyborn, 1 Show. 98 ; Swayn v. Stephens, Oro. Oar. 333. (k) Gregory v. Hurrill, 1 Bing. 24 (8 E. 0. L. R.) ; 8 Moore, 189, s. c. (I) Fannin v. Anderson, 7 Q. B. 8U (53 E. 0. L. R.) ; Towns v. Mead, 16 0. B. 1?3 (81 E. C. L. R.) ; Forbes v. Smith, 24 L. J.,Exoh. 299; 10 Exch. 717, s. 0. ; and see Forbes t. Smith, 11 Exch. 161. As to what is evidence for the jury of a person not having been in England, see Koch v. Shepherd, 18 0. B. 191 (86 E. C. L. R.). (m) Doe d. Duroure v. Jones, 4 T. R. 310 ; Smith v. Hill, 1 Wils. 134 ; Gray v. Mendez, 1 Stra. 556 ; Rhodes v. Smethurst, 4 M. & W. 42 ; 6 M. & W. 351, in error. (») Dickson v. Thomson, 2 Show. 126. (1) The disability which entitles a party to the benefit of the proviso must exist when the right of action first accrues, and if several disabilities exist together, the statute does not begin to run until the whole are removed. Jackson v. Johnson, 5 Cowen, J4'; Jackson v. Wheat, 18 Johns. 40 ; Butler v. Howe, 1 Shepl. 397 ; Starke y, Starke, 3 Richardson, 438. Where the statute has commenced to run, no subse- quent disability can stop it. Peck v. Randall, 1 Johns. 165 ; Rogers v. Hillhouse, 3 Conn. 398 ; Crosier v. Gana, 1 Bibb, 257 ; Mercer v. Selden, 1 Howard, U. S. 37 ; South V. Thomas, 7 Monroe, 59 ; McDonald v. Johns, 4 Yeager, 258 ; Den v. Richards, 3 Greenl. 34,7 ; Dillard v. Philson, 5 Strobhart, 213. 506 OP THE STATUTE OF LIMITATIONS that a part payment of principal or interest amounted to an acknow- ledgment.(o) The effect of these decisions was nearly to repeal the statute. Their consequences were somewhat restrained by the case of Tanner v. Smart,(jt>) in which it was decided that a new promise or acknowledgment did not operate by drawing down the original promise to a subsequent date, but by giving a new cause of action ; and that the promise stated in the replication is to be considered as the promise laid in the declaration, and must be con- sistent with it.(l) (0) Hollis T. Palmer, 2 Bing. N. C. 113 (29 B. C. L., E.) ; 3 Scott, 265, a. o. {p) 6 B. & 0. 603 (13 B. C. L. R.). , (1) The acknowledgment must be clear and explicit, not inconsistent with an immediate promise to pay. absolutely or unconditionally. Harrison v. Handley, 1 Bibb, 443 ; Ash v. Patton, 3 Serg. & Rawle, 300 ; Head v. Manners, 5 J. J. Marsh. 25; Bell v. Morrison, 1 Peters, 351 ; Bradley v. Field, 3 Wendell, 2V2; Lawrence T. Hopkins, 13 Johns. 288 ; Atwood v. Coburn, 4 N. Hamp. 315 ; Tichenor v. Oolfax, 1 Southard, 153; Bank y. Sullivan, 6 N. Hamp. 124; Russell v. Copp, 5 N. Hamp. 154; Marshall v. Dalliber, 5 Conn. 480 ; Fries r. Boisdelet, 9 Serg. & Rawle, 128; Hudson T. Carey, 11 Ibid. 10 ; Bailey v. Bailey, 14 Ibid. 195 ; Bracket t. Mountfort, 3 Fairf. 72 ; Roger T. Waters, 2 Gill & Johns. 64 ; Hancock v. Bliss, 7 Wend. 267 j Allison V. Pennington, 7 Watts &'Serg. 180 ; Fellows v. Guimann, Dudley, Geo. 100. There must be either an absolute promise to pay the debt, or a conditional promise accompanied by proof of performance of the conditiouj or an unambiguo,mB.acknow- ledgment of the debt as still existing and due. Porter v. Hill, 4 Greenl. 41 ; Deshon V. Eaton, Ibid. 413 ; Bell v. Morrison, 1 Peters, 351 ; Bush v. Barnard, 8 Johns. 407 ; Robbins v. Otis, 1 Pick. 368. There Tuust be an express promise-'lo pay, or an ad- mission of a subsisting debt which the party is willing to pay. Horlbeck v. Horl- beck, 1 McMuUan, 197 ; Waples v. Layton, 3 Harr. 508 ; Brown v. Joynes, 1 Rich- ardson, 210; Kelly T. Sanborn, 9 N. Hamp. 46 ; Williamson v. King, 2 McMullan, 505 ; Davidson v. Morris, 5 Smedes & Marsh. 564 ; Cocks v. Weeks, 7 Hill, 45 ; Far- ley V. Kustenbader, 3 Barr, 418 ; Manning v. Wheeler, 13 N. Hamp. 486 ; Ventris v. Shaw, 14 Ibid. 422 ; Kensington Bank v. Patten, 14 Penna. State Rep. 479; Brown v. State Bank, 5 English, 134; Harbold's Ex'rs v. Kuntz, 16 Penna. State Rep. 210. The acknowledgment must admit that the debt continues due at the time of the acknowledgment. Bangs v. Hall, 2 Pick. 368 ; French v. Frazier, 7 J. J. Marshall, 425 ; Wetzell v. Bussard, 11 Wheat. 310 ; Oliver v. Gray, 1 Har. k Gill. 204; Fer-' guson v. Taylor, 1 Hayw. 20 ; Belles v. Belles, 7 Halst. 339 ; Purdy v. Austin, 3 Wend. 187 ; Barlow v. Bellamy, 7 Vermont, 54. It has been held in some cases, that a general acknowledgment of a subsisting indebtedness, without specifying the amoiintof the debt or the balance due, is Buffi- cient. Lord v. Harvey, 3 Conn. 370; Whitney v. Bigelow, 4 Pick. 110. But the weight of authority undoubtedly is, that the acknowledgment must clearly refer to the very debt in dispute between the parties. Clarke v. Dutcher, 9 Cowen, 674; Bell V. Morrison, 1 Peters, 351 ; Lockhart v. Eaves, Dudley, S. C. 321 ; Pray v. Garoelon, 5 Shepl. 145 ; Diusmore v. Dinsmore, 8 Ibid. 433 ; Davis v. Herring, 6 Missouri, 21 ; Thompson v. French, 10 Yerger, 453 ; Robbins v. Farley, 2 Strobhart, IN ITS APPLICATION TO BILLS AND NOTES. 607 At length, further to restrain the mischief, the late learned Lord Chief Justice of the King's Bench introduced the act 9 Geo. 4, by which it is enacted(g') that no acknowledgment or promise by words only shall take a case out of the statute, unless in writing, and signed by the party chargeable. That where there are several joint contractors or executors, one shall not lose the benefit of the statute through a written acknowl- edgment signed by the other, but the plaintiff shall recover against the acknowledging party only. That the effect- of payment of principal or interest, by any person, shall remain as before the statute, (r) In considering the operation of this and other parts of the act 9 Geo. 4, c. 14, on the 21 Jac. 1, c. 16, in respect of acknowledg- es) Cap. 14, o. 1. - (r) See 19 & 20 Vict. y,. 97, a. 14. 348 ; Martin v. Broach, 6 Georgia, 21 ; Davis T. Steiner, 14 Penna. State Rep. 275; Arcy V. Steplienson, 11 Iredell, 86. An admission by an individual that there is something due from him on account, with a promise of payment, will take a case out of the statute, but will justify a recovery only for a nominal sum. Kittridge v. Brown, 9 N. Hamp, 377. When part of an account is barred, an, admission of in- debtedness and a general promise to settle and pay, is not such a new promise as will take the case out of the statute, for it may refer to that part unaffected by the statute. Morgan v. Walton, 4 Barr, 321. A conditional promise to pay a specified demand, where the other party refuses to accede to the condition annexed, is not sufficient to take the demand out of the operation of the statute, either as a promise to pay or an admission of present indebtedness. M'Lellan v. AUbee, 5 Shepl. 184 ; Didier V. Davison, 2 Sandf. Ch. Rep. 61.^ Where the promise is conditional, the plaintiff must show that the terms have been fulfilled so as to make the promise ab- solute. Brown V. Joyner, 1 Richardson, 210; Tompkins, v. Brown, 1 Denio, 247; Farmers' Bank v. Clarke, 4 Leigh, 603 ; Shaw v. Newell, 1 Rhode Island, 488. Where the acknowledgment is accompanied with circumstances or declarations, showing an intention to insist on the benefit of the statute, no promise to pay can be implied. Bangs v. Hall, 2 Pick. 368 ; Danforth v. Culver, U Johns. 146 ; Hay v. 'Kramer, 2 Watts k Serg. 137 ; McGlensey v. Fleming, 4 Dev. & Batt. 129. A pro- mise not to plead the Statute of Limitations will take a case out of the operation of the statute. Lowry v. Dubon, 2 Bailey, 425; Warren v. Walker, 10 Shepl. 453. Such a promise must itself of course be within the time. The acknowledgment revives the old debt, and does not create a new obligation. Newiin v. Duncan, 1 Harrington, 204 ; Love v.. Hackelt, 6 Georgia, 486. But see Sims v. RadcliffefS Richardson, 287 ; Austin v. Bostwick, 9 Conn. 496. Under a general replication to a plea of the statute, evidence of an acknowledgment or promise to pay within the time is admissible. Hunter v. Starkea, 8 Humphrey, 656. An acknowledgment or promise to pay a debt, sufficient to take it out of the statute, may be made after the commencement of the suit. Danforth v. Culver, 11 Johns. 146. 508 OP THE STATUTE OF LIMITATIONS , jj ments, promises or payments, as to bills or notes otherwise barred by the statute of James, we shall inquire, first, what sort of an acknowledgment, promise or payment, it must be to take a debt out of the statute ; secondly, at what time it must be made ; thirdly, by whom ; fourthly, to whom ; and, lastly, by what evidence it must be proved. First, as to the sort of acknowledgment, promise or payment which will save the statute. An acknowledgment, before the 9 Geo. 4, c. 14, must have been such an acknowledgment as implies a promise to pay, and must be so still. "That statute," says Tindal, C. J., "did not intend, as it appeared to us, to make any alteration, in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof, substituting the cer- tain evidence of a writing signed by the party chargeable instead of the *insecure and precarious testimony to be derived L J from the memory of witnesses."(s) Therefore, the ac- knowledgment must not be a'ccompanied with expressions repelling the inference of a promise to pay;(i) and if a payment be made^ accompanied by expressions which render the intention of the pay- ment doubtful, then the meaning of any such expressions is a question of fact for a jury.(M) If the promise be conditional, the condition must be shown to have been performed.(a;) "There must," says Rolfe, B., "be a, 'promise to pay; but from a simple («) Haydon T. Williams, 7 Bing. 166 (20 E. C. L. R.) ; 4 M. & P. 811, s. o. {t) Fearn v. Lewis, 6 Bing. 349 (19 E. 0. L. R.) ; 4 M. & P. 1, a. c. ; Scales v. Jacob, 3 Bing. 638 (11 E.^0. L. R.) ; 11 Moore, 553, s. c; Ayton v. Bolt, 4 Bing. 105 (13 E. 0. L. R.) ; 12 Moore, 305, s. 0. ; Kennett v. Milbank, 8 Bing. 38 (21 E. 0. L. R.) ; 1 M. & Scott, 102, s. o. ; Brigstoek t. Smith, 1 C. & M. 483; Spong \ Wright, 9 M. & W. 629 : Cawley v. Turnell, 12 C. B. 291 (71 E. C. L. R.); Smith T. Tborne, 18 Q. B. 134 ('83 B. C. L. R.) ; Rackham v. Marriott, 25 L. J., Exch. 324; 1 H. & N. 234, s. 0. ; Goate v. Goate, 1 H. & N. 29 ; Cornforth v. Smithard, 6 H. Ar N. 13 ; 29 L. J., Exch. 228 ; Everett v. Robertson, 1 B. & E. 16 (102 E. C. L. R.); GoUinson v. Margesson, 27 L. J., Exch. 305 ; Godwin v. CuUey, 4 H. & N. 373. («) Wainman v. Kynman, 1 Exch. 118. {x) Tanner v. Smart, 6 B. & C. 603 (13 E. C. L. R.); 9 D. & R. 549, s. c; Ken- nett t. Milbank, 8 Bing. 38 (21 E. C. L. R.) ; 1 M. & Scott, 102, s. c; Linsellv. Bonsor, 2 Bing. N. 0. 241 (29 E. 0. L R.) : 2 Scott, 399, s. c; Humphreys t. Jones, 14 M. & W. 2 ; see Howcutt v. Bonser, 3 Exch. 499. It does not appear necessary to declare on the conditional promise. Irving v. Veitch, 3 M. & W. 90 ; Edmunds v. Downes, 2 0. & M. 459 ; 4 Tyr. 173, s. c; Haydon v. Williams, 7 Bing, 168 (20 B. 0. L. R.); 4 M. & P. 811, s. o.; Gardner v. McMahon, 3 Q B. 561 (43 E. C. L. K,). IN ITS APPLICATION' TO BILLS AND NOTES. 509 acknowledgment the law implies a promise."(y) It is sufficient if the acknowledgment or promise ascertain, either expressly or by reference, the amount due,(s) or if it leave the amount to be sup- plied by parol evidence. Where, in an action against the acceptor of a bill of exchange, to take the case out of the statute, a letter by the defendant promising "to pay the balance," was produced, but the letter did not specify its amount, the plaintiff was held en- titled to recover nominal damages. (a) The date of a letter acknowledging a debt may be supplied by parol evidence.(6) *The construction of an ambiguous written document ^ given in evidence, to save the statute, is for tlie court, and L ^ not for the jury.(c) Where there was a mutual and running account between the plaintiff and the defendant, any item on either side within six years would formerly have taken the whole account out of the statute, but an item in an account not mutual would not.(d) But since Lord Tenterden's Act, there must be either payiUent by the defendant, or a signed acknowledgment.(e) (y) Hart v. Prendergast, 14 M, & W. Y41 ; Williams v. Griffith, 18 L. J., Exch. 210 j 3 Excli. 335, s. 0.; Phillips t.. Phillips, 3 Hare, 299 ; Buckmaster v. Russell, 4 L. T., N. S. 552. But the acknowledgment must be made for the purpose of re- cognizing the debt.. An acknowledgment made in other affairs and alio intuitu is not sufficient. Cockerillw. Sparke, 1 H. & Colt. 699 ; Ererett t. Robertson, 1 E. & E. 16 (102 E. C. L. R.). (2) Lechmere t. Fletcher, 1 C. & M. 623. The amount may be ascertained by extrinsic evidence ; Bird v. Gammon, 3 Bing. N. C. 8^3 (32 B. C. L. R.) ; 5 Scott, 213, s. I Waller v. Lacy, 1 M. & Gr. 54 (39 E. C. L. R). ' (a) Dickinson v. Hatfield, 1 M. & Rob. 141 ; 5 0. & P. 46 (24 B. 0. L. R.), s. 0.; see Kennett t. Milbank, 8 Bing. 38 (21 E. C. L. R.); 1 M. & Scott, 102, s. 0. (i) Edmunds t. Downes, 2 0. & M. 459. > (e) Morrell v. Frith, 3 M. & W. 402. But it is a general rule, that parol evidence is admissible to explain technical terms in mercantile instruments, though the con- struction of the instrument is for the Court; Ibid. Bowman v. Horsey, 2 M. & Rob. 85. (d) Rothery v. Munnings, 1 B. & Ad." 15 (20 E. C. L. R.) ; Cotes v. Harris, B. N. P. 149 ; Cranoh v. Kirkman, Peake, 121 ; Catling v. Skoulding, 6 T. R. 193. (e) Williams r. Griffiths, 2 C, M & R. 45. The exception of merchants' accounts applied only to an action of account, or to an action on the case for not accounting. Inglis V. Haigh, 8 M. & W. 769. 510 OF THE STATUTE 6F LIMITATIONS An account once stated is within the statute. (/) , A devise, in trust to pay a particular creditor, will take a debt out of the statute in equity. . Bat a devise for the payment of debts in general will not revive a debt if the statute has run out,(ff). but will, in equity, prevent the statute from running. out.(A) In a recent case, Lord Brougham -held, reversing a contrary decision of Sir John Leach, M. E.., that a bequest of personal estate for the payment of debts will have the same effect.(z)(l) As a debt due from a testator's estate may exist, and yet the executor not be liable to pay, a mere acknowledgment of a debt by an executor is not sufficient to take a debt out of the statute; there must be an express promise. (A) And it seems that a part payment by one executor will not take, the case out of the statute as against his co-executor. (i)(2) (/) Farrington v. Lee, 1 Mod. 268 ; Renew v. Axton, Carth. 3 ; Ohievly v. Bond, 4 Mod. 105 ;. Tickell v. Short, 2 Ves. sen. 239. (g) Burke v. Jones, 2 Ves. & B. 275 ; Gulliver v. Gulliver, 1 H. & N. 174.- (A) Hughes V. Wynn, 1 Turn & R. 307 ; Hargreaves v. Mitchell, 6 Madd. 326 ; Moore v. Petchell, 22 Beav. 172; Jacquet v. Jacquet, 27 Beav. 332. (i) Jones v. Scott, 1 Russ. & M. 255. But see Spong v. V^Tright, 9 M. & W. 629. (A) Tullock V. Dunn, R. & Moo. 416; and see Atkins v. Tredgold, 2 B. & 0. 23 (9 E. C. L. R.) ; 3 D. & Ry. 200, s. 0. ; Fordham v. Wallis, 22 L. J., Chan. 548. {1} Scholey v. Walton, 12 M. & W. 510. (1) Campbell v. Sullivan, Hardin,- 17 ; Man v. Warner, 4 Whart. 455; Agnevrv, Fetterman, 4 Barr, 56 ; Murray v. JHechanics' Bank, 4 Edw. Oh. 567 ; Smith v. Porter, 1 Binuey, 209. The Statute of Limitations does not operate as between a trustee and his cestui que iruH to bar a trust claim. Everts v. Nason, 11 Vermont, 122. Trusts which are not barred are those continuing trusts which are not cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of a court of equity. Finney v. Cochran, 1 Watts k Serg. 112. (2) An acknowledgment by an executor or administrator will not avail. Fritz v. Thomas, 1 Whart. 66 ; Thompson v. Peter, 12 Wheat. 565 ; Parkins v. Benniagtoa, 1 Harrington, 209 ; Galley v. Washington, 2 Ibid. 204 ; Peck v. Botsford, 7 Conn. 172 ; Oakes v. Mitchel, 3 Shepl. 360 ; Forney v. Benedict, 5 Barr, 225. Contra, Baxter v. Penniman, 8 Mass. 133 ; Emerson v. Thompson, 16 Ibid. 421 ; Larason v. Lambert, 7 Halsted, 247 ; Newhouse v. Redwood, 7 Alabama, 598 ; Hord v. Le?, ,4 Monroe, 36 ; Niemeevvicz v. Bartlett, 13 Ohio, 271. The promise of an executor or administrator to pay a debt barred in the lifetime of the testator or intestate vfill not be binding; aliler, when the debt is not barred. Reigne v. Despartes, Dudley, S. 0. 118; McKee v. Ferguson, RUey, 159; Pearce v. Zimmerman, Harper,. 305; Forney v. Benedict, 5 Barr, 225. IN ITS APPLICATION TO BILLS AND NOTES. 511 *It seems, that a notice in the newspaper, by a personal . representative, that he will pay all debts justly due from ^ -" his testator, will prevent a debt from being barred by the Statute of Limitations.(»i) A payment must appear to be the payment of a debt, of the debt for which the action is brought, • and a part payment of a larger sum.(w) "The principle," Says Parke, B., "upon which part payment takes a debt out of the statute is, that it admits a greater debt to be due at the time of the part payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still existing debt."(o)(l) Where a debtor owes his creditor some debts from a period longer than six years, and others from- a period within six years, and pays a sum without appropriating it to any particular debt, such payment is not a payment on account, to take out of the Statute of Limitations the debts due longer than six years, but the creditor may at any time apply such payments to the debts due longer than six years, (p) (fft) Jones T. Scott, 1 Buss. & M. 253. (n) Tippets v. Heane, 1 0., M. & R. 252 ; 4 Tyr. 112, a. c. But the sum need not tben be ascertained. Walker y. Butler, 25 L. J., Q. B. 377; 6 E. & B. 506 (88 B. C. L. E.), s. 0. In Burn v. Boulton, 15 L. J., 0. P. 97 ; 2 0. B. 476 (52 E. 0. L. E.), it was held that there was a difference between a debt on a promissory note, and a debt on a quantum meruit. That, therefore, if a payment is made, less than the amount of the note, it need not be proved by any expressions at the time of pay- ment to be a part payment; and see Worthington v. Grimsditch, 7 Q. B. 479 (53 B. C. L. E.). (0) Worthington v. Grimsditch, 7 Q. B. 479 (53 B. 0. L. E.). See Gowan t. Forster, 3 B. & Ad. 510 (23 B. 0. h. R.). (p) Mills T. Fowkes, 5 Bing. N. 0. 455 (35 E. C L. R ) ; 7 Scott, 444, s. c. ; Waller V. Lacy, 9 L. J., 0. P. 217; 1 Scott, 186; 1 M. & 6r. 54 (39 B. C. L. R.), s. o. ; (1) Part payment of an account, barred by the statute, removes the bar as to the remainder. Strong v. McConnell, 5 Vermont, 338 ; Carshore v. Huyck, 6 Barjj. S. 0.583; State Bank T. Wooddy, English, 638; contra, Smith v. Westmoreland, 12 Smedes & Marshall, 663. An indorsement made on the back of a note in the hand- writing of the payee is not such evidence of a part payment as to take the note out of the operation of the statute. Olapp v, IngersoU, 2 Fairfield, 83 ; see Coffin v. Buchanan, 3 Fairfield, 471 ; McGehee v. Grue, 7 Porter, 537 ; Connelly v. Pierson, 4 Gilman, 108. Contra, if proved to have been made before the bar had attached. Addams T. Seitzinger, 1 Watts & Serg. 243; Ooncklin v. Pearson, 1 Richardson, 391 j Alston V. State Bank, 4 English, 455. 512 OF THE STATUTE OE LIMITATIONS , %' The giving of a bill is sufficient as a payment or acknowlfeclg- ment to obviate the statute.(g') But the drawing of the bill is payment or acknowledgment at the time of the drawing, and not at the time of the payment by the drawee. (r)(l) Goods treated as money are a sufficient payment.(s) *An acknowledgment, made necessary by the statute 9 L -J Geo. 4, c. 14, is exempted by the eighth section from the Stamp Act, to which, as an agreement, it would otherwise have been subject. (i) But if it amount to a promissory note, the ex- empting clause does not apply, and a stamp is necessary.(M) A mere parol statement of an antecedent debt without any new contract or consideration made within six years before action brought, does not constitute a sufficient cause of action to prevent the operation of the Statute of Limitations. (a;) But where there are cross demands of which there is a mutual settlement by the statement of a balance, the case is taken out of the statute,(y) because, as observed by Mr. Baron Alderson, " The truth is, that the going through an account with items on both sides, converta the set-off into payments. "(2)(2) Mash V. Hodgson, 1 Kay, 650; 23 L. J., Ohan. 780, s. 0. ; but see 25 L. J., Chan. 186 ; 6 De G., M. & G. 4T4, and ante, p. 220. (q) Turneyj. Dodwell, 3 B. & B. 136 (77 E. 0. L. E.) ; Irving v. Veitch, 3 M. & W. 90. " {r) Gowan v. Porster, 3 B. & Ad. 507 (23 E. 0. L. R.). (a) Hart v. Nash, 2 C, M. & R 337 ; Hooper v. Stevens, 7 C. & P. 260 (32 E. 0. L. B.) ; 4 Ad. & E. 71 (31 E. C. L. R.) ; 5 N. & M. 635; 1 Har. & W. 480, S. c; and see as to the evidence, Mopre v. Strong, 1 Bing. N. 0. 441 (27 E. C. L. E.); Bodyer t. Archer, 10 Exch. 333. (i!) Morris v. Diion, 4 Ad. & B. 845 (31 E. C. L. R.) ; 6 N. & M. 438, s. c. (m) Jones V. Ryder, 4 M. & W. 32 ; Holmes v. Mackrell, 3 C. B., N. S. 789 (91 E. C. L. R.) ; Parmiter v. Parmiter, 30 L. J., Ch. 508, per Lord Campbell. (x) Jones v. Ryder, 4 M. & W. 32, overruling Smith v. Forty, 4 C. & P. 126 (19 E. C. L. R.). (y) Ashby V. James, 11 M. &,W. 542 ; Worthington v. Grimsditch, 7 Q. B. 479 (53 E. 0. L. B.) ; Pott v, Clegg, 16 M. & W. 327 ; 16 L. J., Bxch. 210. (z) Bodyer v. Archer, 10 Exoh. 333 ; Amds v. Smith, 31 L. J., Exch. 423; Wor- (1) A negotiable note given by a debtor for part of a debt is payment of suffi part, and takes the debt out of the statute. Ilsley v. Jewett, 2 Mete. 168. (2) If there be mutual running accounts between others than merchants, and any of the items have accrued within the time of the statute, this amounts to an acknowl'- in ITS APPLICATION TO BILLS AND NOTES. 613 Payment of interest is sufficient to take the principal out of the statute,{a) but a payment of principal (except in the case of bills or notes) will not revive a claim for interest.(6)(l) Secondly, as to the time when the acknowledgment must be made. Except in the oases which have been mentioned of devises and bequests for the payment of debts, it makes no difference whether the promise, acknowledgment, or payment were made before or after the expiration of six years. An acknowledgment which prevents the running out of the statute will also revive a debt already barred. It was formerly held, that the acknowledgment might be thingtoa t. Grimsditch, 7 Q. B. 4T9 (34 E. 0. L. R.). See however, Clark v. Alex- , ander, 13 L. J., C. P. 133. One item only is enoagh. Knowles v. Mitchell, 13 East, 249 ; Highmore' v. Primrose, 5 M. & S. 65. See Lemere v. Elliott, 6 H. & N. 656. ■'(«) Purdon v. Purdon, 10 M. & W. 562; Bamfield v. Tupper, 7 Exch. 27. (4) Collier v. Vfillock, 4 Ring. 313 (13 B. 0. L. K.) ; 12 Moore, 537, s. c. ; Bealy V. Greenslade, 2 C. & J. 61. edgment of the previous account, and prevents the operation of the statute. Fitch V. Hilliary, 1 Hill, S. C. 292; Belles v. Belles, 7 Halst. 339; Burnet v. Bryan, 1 Halst. 377; Chamberlin v. Cuyler, 9 Wend. 126 ; Wood v. Barney, 2 Verm. 369 ; Davis V. Smith, 4 Greenl. 337; Abbot v. Keith, 11 Verm. 525; Van Swearingen V. Harris, 1 Watts & Serg. 356 ; Thomson v. Hopper, Ibid. 467. But items in an account charged within six years do not take items charged more than six years be- fore suit out of the statute, unless there are mutual accounts between the parties. Bennet v. Davis, 1 N. Hamp. 19 ; Kimball v. Brown, 7 Wend. 322 ; Miller v. Col- well, 2 Southard, 577 ; Buntin v. Logow, 1 Blackford, 373 ; Tucker v. Ivers, 6 Cowen, 193 ; Chipman v. Bates, 5 Vermont, 143 ; Gold v. Whitoomb, 14 Pick. 188 ; Blair v. Drew, 6 N. Hamp. 235 ; Smith v. Ruecastle, 2 Hslst. 357. To constitute mutual accounts, there must be items, within the period limited by statute, on both sides of the account. Gulick v. Turnpike Co., 2 Green, 545, Where there was an account of hats sold, and a credit of cash paid and one hat returned, it was held that this, was not a mutual account. ' Hay v. Cramer, 2 Watts & Serg. 137; Lowber V. Smith, 7 Barr, 381. Where all the items of an account between the plaintiff and defendant as merchants, bore date more' than twenty years antecedent to the com- mencement of the action, it was held that a small item to the debit of the defendant, dated within twenty years, but at a time when the defendant had ceased to be a merchant, such item not being of a mercantile character, would not revive the whole account against the defendant. Hancock v. Cook, 18 Pick. 30. (1) Trustees v. Osgood, 8 Shepl. 176; Walton v. Robinson, 5 Iredell, 341; San- ford V. Hayes, 19 Conn. 591 ; Craig v. Callaway County Court, 12 Missouri, 94. 33 514 OF THE STATUTE OF LIMITATIONS *after action brought, (c) But as the acknowle^gii^^^s '- ' now considered as the ground of action and the subject of the declaration, the promise, acknowledgment, or payment' mnSt clearly be before action brought. (<^) Payment of money into court will not take a bill or note out of the statute, except as to the amount paid in.(e) Thirdly, as to the person by whom the promise, acknowledgipi^i^K! or payment may be made.(l) (c) Year. Fouraker, 2 Burr. 1099; Lloyd v. Maund, 2 T. R. 760; Euckerv. H311- nay, 4 East, 604, n. (d) Tanner v. Smart, 6 B. & C. 603 (13 B. 0. L. E.); 9 D. & E. 549, s. c; Eew V. Pettet, 1 Ad. & E. 196 (28 E. 0. L. R.) ; 3 N. & M. 456, s.c; Bateman v. Pinder, 3 Q. B. 5T4 (43 B. C.L. E.). (e) Eeid v. Dickons, 5 B. & Ad. 499 (27 E. C. L. E.) ; 2 N. & M. 369, s. c. ; and see Long v. Greville, 3 B. & C. 10 (10 E. C. L. E.) ; 4 D. & R. 632, s. 0. (1) The acknowledgment need not be made to the party himself or his agents. Oliver v. Gray, 1 Bar. & Gill, 204 ; Whitney v. Bigelow, 4 Pick. 110 ; St. John v. Garrow, 4 Porter, 223 ; Minkler v. Mlnkler, 16 Vermont, 194; Watkins t. StevenSj, i 4 Barbour, S. 0. 168 ; Carshore v. Huyck, 6 Ibid. 583. Contra: Kyle V.Wells, 17 Penna. State Eep. 286 ; Gillingham v. Gillirigham, Ibid. 302. Perhaps no cases illastrate better than the two last cited the progress of legal , decisions upon the subject of the Statute of Limitations. The time was when this defence was ftowned upon by the Courts : the man who resorted to it was presumed to be a dishonest man, who wished to avail himself of the supiness or indulgence j of his creditors to defraud them of their property. If sharp practice had sueceedad in obtaining a judgment by default, the Courts did not consider it as within the exercise of a sound and equitable discretion to open the judgment to let in such a defence. Almost any expression referring to the former existence of the claim was allowed to operate as an acknowledgment. If a man admitted the debt, but coupled it with a determination never to pay it, it was held sufficient to go to a jury. Lord Erskine is said to have advised a client, that if applied to on the subject of a-de- mand against which the statute had run, it would be dangerous to remain silent merely, his only safety lay in knocking the claimant down. The opinion of the Supreme Court of Pennsylvania, as delivered by Lowri«, J., presents with great force and succinctness the preseni evidfent tendency of the judicial mind, though it may be the courts of other States do not practically go the same length, especially-) when the overruling of former oases is involved. " The highest morality of a judi- cial or other public officer," says Judge Lowrie, " consists in keeping himself with* in and yet fully performing the law of his office, because that is the rule of official duty. But the private citizen is not thus restricted, for the law falls far short of being the rnle of individual duty. There is a boundary of honor and even of hon- esty, however undefined, beyond which the law has no jurisdiction ; there are duties which it cannot and many others which it should not enforce. And it is well that it is so ; for where duty is compelled, it is performed without merit, and that is IN ITS APPLICATION TO BILLS AND NOTES. 515 It may be made by an agent,(/) and therefore by a wife acting as agent,(^) and by one partner even after dissolution of the part- nership, (A) if he makes a payment. But if an agent exceed his authority in making the payment, it will not take the debt out of the statute;(i)(l) It may be made by an infant for necessaries. (A) (/) Burtv. Palmer, 5 Esp. 145. But an acknowledgment in writing, signed by an agent, has been held insufficient. Hyde T. Johnson, 2 Bing, N. 0. 776 (29 E. C. L, R.); 3 Scott, 289, s. 0. Sed qitcere. This case, howeyer, has been several times rcccgoized, and a question has even been made whether a written acknowledgment, signed by one of several partners in trade, has any other effect than an acknowledg- ment by one of several ordinary joint contractors. Clark v. Alexander, 13 L. J., C. P. 133. But now by 19 & 20 Vict. c. 97, s. 13, the signature of an agent suffices. (g) Evidence of admission by an agent may be admissible without calling the ageni; Palethorpe v. Furnish, 2^sp. 511; Anderson v. Sanderson, 2 Stark. 204 (3 B. C. L. R.); Holt, N. P. C. 591, s. 0. ; Gregory v. Parker, 1 Camp. 394; but see Gibson v. Baghott, 5 0. & P. 211 (24 E. C. L. R.). (A) Wood V. Braddick, 1 Taunt. 104. (t) Linsell v. Bonsor, 2 Bing. N. C. 241 (29 E. C. L. R.) ; 2 Scott, 399, s. o. (A) Willins t. Smith, 4 E. & B. 180 (82 E. C. L. R.). a base-born morality that is begotten by statute. In order that a man may improve he must have ability to do wrong as well as right, and his nature is violated and his development stinted, when the machinery of the law is too often applied to give form to his actions. "When a claim is barred by the Statute of Limitations, it ceases to be a legal right, and becomes a mere moral right. The duty is not dis- charged ; but the remedy is transferred from the forum of law to the forum of con- science. But because in some hard cases this latter forum refused relief, the law was stretched and the province of morality invaded by deciding that a moral duty, followed by a promise, became a legal duty ; and. now such is the law, though the reasoning is inconsequential." The Judge then proceeds to apply to the case the maxim of the Roman law — per extraneam personam nihil acquiri nobis potest. If the defendant had expressly told the witeess that he would call and pay, this would have been but the expression of a determination, revocable at pleasure, and would have created no legal duty. It is, however, the distinct and unequivocal admission of a debt al that time subsisting in full force, with knowledge of the lapse of time, that constitutes the difficulty of the case. If the declaration to a third person ad- mitted that it had been kept alive by renewed promises to the creditor himself, it could not consistently with the well-settled rules of evidence be held unavailable. Both the cases in which this new principle has been advanced, were cases however in which the bar of the statute was already complete at the time of the alleged ac- knowledgment, and it may be questioned whether the same court would apply the rule 10 a case where the time had not yet run out. (1) The acknowledgment by one of several joint debtors is sufficient to take the case out of the statute as to them all. Getchell v. Heald, 7 Greenl. 26 ; White v. Hale, 3 Pick. 291 j Bound v. Lathrop, 4 Conn. 336 ; Shepley v. Waterhouse, 9 Shepl. 497; Clark V. Sigourney, 17 Conn. 511. Contra: Coit v. Tracy, 8 Conn. 268; 9 Ibid. 1. An acknowledgment by one partner after the dissolution binds the other partner. Patterson v. Choate, 7 Wend. 441 ; Smith v. Ludlow, 6 Johns. 267 ; Austin 516 OF THE STATUTE OF LIMITATIONS Payment of interest by an indorser of a promissory note does not take the note out of the statute as against the maker,(Z) ,„ The 9 Geo. 4, c. 14, introduced, as we have seen, a distinction between acknowledgments and promises by words onli/,(m) and payments. The former, in the case of joint contracts, affected only the party acknowledging ; the latter retained their former effect. Where there is a joint contract, the parties were, under the *old Statute of Limitations, respectively agents fori each '- ' -I other in respect of that contract, till the joint liability had determined.(w) In a joint action, therefore, against the makers of a joint and several promissory note, a payment by one would have revived the debt against the others, (o) So, if the action had been brought against one alone, payment by his companion would have [l) Harding v. Edgecombe, 28 L. J., Exch. 313. (m) As to the effect of an acknowledgment by an executor, see Fordham v. Wallia, 22 L, J., Chan. 548. See Emery v. Day, 1 C, M. & R. 249 ; 4 Tyr. 695, s. 0. (n) Wood V. Braddick, 1 Taunt. 104. (o) Perham v. Raynal, 2 Bing. 306 (9 E. C. L. R.) ; 9 Moore, 556, s. 0. Though made by a partner after a dissolution of partnership ; Goddard v. Ingram, 12 L. J., Q. B. 9 ; 3 Q. B. 839 (43 B. 0. L. R.), s. 0. V. Bostwick, 9 Conn. 408 ; Wheelock v. Doolittle, 18 Vermont, 440. Contra: Bell V. Morrison, 1 Peters, 351 ; Searight v. Craighead, 1 Penna. Rep. 135 ; Brewster t. Hardeman, Dudley, Geo. 138 ; Steel v. Jennings, 1 McMallan, 297 ; Mun v. Donald- son, 2 Humph. 166; Van Kewen v. Parmelee, 2 Comstock, 523. If a promise or acknowledgment by one partner after dissolution, is made before the bar of the statute has attached, it will keep the debt alive as to all, but such promise or ac- knowledgment will not revive a debt once barred. Brewster v. Hardeman, Dudley, Geo. 138 ; Fellows v. Guimann, Ibid. 100 ; Mclntire v. Oliver, 2 Hawks, 209 ; Wal- ton V. Robinson, 5 Iredell, 341. An acknowledgment by principal is good as against the surety. Erye v. Barker, 4 Pick. 382 ; Zent v. Hart, 8 Barr, 337. Contra: Low- ther v. Ohappell, 8 Alabama, 353. A partial payment by oue of two joint makers does not take the case out of the statute as to the other. Hathaway v. Haskell, 9 Pick.' 42; Coleman V. Forbes, 22 Penna. State Rep. 156. Contra: Joslyn v. Sriiith, 13 Vermont, 353 ; Real Estate Bank v. Hartfield, 5 Pike, 551 ; Davis v. Coleman, 7 Ire- .dell, 4.4; Patch v. King, 29 Maine, 448 ; Caldwell v. Sigourney, 19 Conn. 37 ; Tur- ner v. Ross, 1 Rhode Island, 88. A partial payment, by one of two obligors of a joint and several bond, will not take the case out of the statute as against the other obligor, unless such, payment be made while their joint liability continue^s. Dis- borough V. Bidleman, 1 Spencer, 275 ; Zent v. Hart, 8 Barr,' 337 ; Lane v. Doty, 4 4 Barb. S. 0. 530 ; Biscoe v. Jenkins, 5 English, 108. Payment in part by indor- ser will not keep the claim alive against the maker. Bibb v. Peyton, 11 Smedes & .Marshall} 275. IN ITS APPLICATION TO BILLS AND NOTES. 517 bound the clefendant,(jB) though ' made fraudulently.(5) And it made no difference that the statute had run out, when the payment by the other joint contractor was made.(?') But after the joint lia- bility had been determined by the death of one of the parties, pay- ment by the survivor would not have taken the note out of the statute against the executors of the deceased ;(«) nor would a pay- ment by the executor of the deceased have affected the survivor. (<) And it has been held, that nothing short of an express promise will take a debt out of the statute against an executor.(M) And if the plaintiff rely on a 'payment, it must distinctly appear that the pay- ment was mada by the executor in his representative, and not in his personal capacity.(a;) And it seems that payment by one ex- ecutor would not of itself have taken the case out of the statute as against his co7executor.(2/) When one of two makers of a joint and several note made his companion his executor, and died, and the survivor afterwards paid interest on the note out of his own pocket, this being an acknowledgment in his personal, and not in his repre- sentative capacity, was held not to revive the debt as against the executors.(z) But the executors of the deceased were bound, if the payment were made by the survivor before the death of their testator, (a) So, where a joint note was made by a man and a woman, and the woman afterwards married, and a joint action was brought against husband and wife and the other maker, *laying the promise by the other maker and the woman dum sola, L -^ and the defendants pleaded that the action did not accrue within six years, evidence of a promise by the other maker after the mar- riage was held to be out of the issue.(6) {p) Wbitcomb v. Whiting, Doug. 629, overruling Bland v. Haselrig, 2 Vent. 151 ; and see Burleigh v. Stott, 8 B. & 0. 36 (15 B. C. L. R.); 2 M. & R. 93, s.o. (?) Goddard v. Ingram, 3 Q. B. 839 (43 B. 0. L. R.). (r) Channell t. Ditchburnj 5 M. & W. 494. (J) Atkins V. Tredgold, 2 B. is 0. 23 (9 E. 0. L. B.) ; 3 D. & R. 200, s. 0. [t) Slater v. Lawson, 1 B. & Ad. 396 (20 E. C. L. R.). (m) TuUook V. Dunn, 1 R. & M. 416 (21 E. 0. L. R.). (xl Scholey v. Walton, 12 M. & W. 510 ; see, however, Griffin v. Ashby, 2 Car. & K. 139 (61 B. 0. L. R,). (y) Ibid. [z) Atkins v Tredgold, 2 B. & 0. 23 (9 E. 0. L. R.) ; 3 D. & Ry. 200, s. 0. (a) Burleigh v. Stott, 8 B. & 0. 36 (15 E. C. L. R.) | 2 M. & Ry. 93, s. 0. (6) Pittam v. Foster, 1 B. & 0. 248 (8 E. C. L. R.); 2 D. & By. 363, ». o. When a single woman gives a promissory note and marries, and the note is more than six years Old, there are great difficulties in suing, although acknowledgments and pay- ments have been made within the six years, but after marriage. A husband can 518 OE THE STATUTE OP LIMITATIONS The distinction, however, between the operation of payments and acknowledgments; is abolished by the 19 & 20 Vict. c. 97, s. 14, which statute restrains the efifect of the acknowledgment implied from payment and confines it to the party making it, as the 9 Geo. 4, c. 14, had restrained the effect of an express acknowledgment. But the statute is not retrospective.(c) It has been held, that payment of a dividend under a commisiitn of bankruptcy against one of two makers of a joint and several note, would take the note out of the statute against the solvent maker, (c^) But that is doubtful, for it has since been more cor- rectly held that payment of a *dividend by the assignees L -• of an insolvent, will not take a note out of the statute as against his co-makers, for there is no acknowledgment of more being due.(e) Fourthly, as to the person to whom the acknowledgment,' promise or payment must be. only be sued for the debt of his wife dum sola during coverture ; Com. Dig. Baron and Ferae, 0. 2 ; and therefore a promise hy him to pay would extend his liability, and is yoid unless upon a new consideration. Mitchinson y. Hewson, T T. B. 348. An acknowledgment or payment, therefore, by the husband, would not sufiSce. An acknowledgment or promise by the husband and wife, or by the wife alone, could hare no operation, the wife being incompetent to contract. Morris t. Norfolk, 1 Taunt. 212. If the husband's promise were considered as a promise to pay during coverture, it would still extend his liability, for an action for BOt paying during coverture would lie after the coverture. If, as a promise to pay, provided jndgmeitt be recovered during coverture (for the judgment fixes the husband with the debt, Com. Dig. Baron and Feme, B. 2], it would still be subject to these exceptions: first, there would be no cause of action till judgment recovered, which is absurd; secondly, the judgment in such an action, being against the husband alone, would charge him to a greater extent than a judgment against husband and wife; for, on a joint judgment, if the husband survive, real execution would be against bis wife's lands as well as his ; and if the wife survive, personal execution would, it is con- ceived, survive against her, and real execution would still be joint, whereas on a judgment against the husband alone, he is subject, notwithstanding his pre-decease, to personal execution, and has no contribution in real execution. (c) Jackson v. WooUey, 27 L. J., Q. B. 448. This statute had been held to be retrospective, and to take away the effect oi^ a payment by a joint contractor as against his companion, though made before the statute. Thompson v. Waithman, 26 L.J., Chan. 134; Jackson v. WooUey, 27 L. J., Q. B. 181. {d) Davies v. Edwards, 21 L. J., Exch. 4. (e) Jackson v. Fairbank, 2 H. Bl. 340, recognized in Perham v. Eaynal, 2 Bing. 306 (9 B. 0. L. R.) ; 9 Moore, 656, s. o. ; but see Brandram v. Wharton, 1 B. & Al. 463. IN ITS APPLICATION TO BILLS AND NOTEE. 519 It haa been held, that the acknowledgment or promise need not, in point of fact, be made to the plaintiff, but may be made to a ; stranger.(/) Therefore, a letter by one joint and several maker of a promissory note to another, has been decided to take the note out of the statute as against the writer ;(^) and from the cases above cited, it should seem it would, before the 9 Geo. 4, c. 14, have had the same effect as against the other maker to whom it was addressed. So also, in an action by indorsees against acceptors of a bill, a deed between the acceptors and third persons, reciting that the bill was outstanding and unpaid, was held to take it out of the statute. (A) So an acknowledgment to a prior holder of a bill or note, enures to the benefit of a subsequent holder.(«) So a paiy- ment to an administrator, under void letters of administration, Will take a note out of the statute in an action by an administrator under valid letters. (A) Lastly, as to the evidence by which a promise, acknowledgment, or payment must be proved, in order to its taking a debt out of the statute. Where the same debt is secured by different instruments, pay- ment of interest on one will take the others out of the statute. (Z) The statute 9 Geo. 4, c. 14, requires that an acknowledgment or promise hy words only should be in writing, signed by the party chargeable, (wi) It was formerly held, that a promise or payment could not be proved by a verbal or unsigned written *acknowledgment. (w) p^ q^^-. But it was also held, that the appropriation of the pay- (/) Peters v. Brown, 4 Bsp. 46. As to, payment to an agent of the holder, see Megginson v. Harper, 2 0. & M. 322 ; 4 Tyr. 94, S. 0. (?) Halliday v. Ward, 3 Camp. 32. (A) MouutBtephen v. Brooks, 1 B. & Aid. 224. (i) Gale t. Capern, 1 Ad. & BU. 102 (28 E. C. L. R.) ; 3 N. & M. 863, s. 0. ; see, however, Orippa v. Davis, 12 M. & W. 159. (A) Clark v. Hooper,- 10 Bing. 480 (25 B. 0. L. R.) ; 4 Moore & S. 353, s. c. [1) bowling V. Ford, 11 M. & W. 329. (m) See ante, p. 337. (n) Willis V. Newham, 3 Y. & J. 518 ; Baildon v. Walton, 1 Bxch, 632 ; Waters V. Tompkins, 2 C, M. & R. 723; 1 Tyr. k Gr. 137, s. c. ; Bayley v. Ashton, 4 P. & D. 204; Maghee v. O'Neil, 7 M. & W. 531; see; ho-wever, Eastwood v. Saville, 9 M. &W. 616. . 520 OF THE STATUTE OF LIMITATIONS ment to a particular debt might.(o) Payment may, however, now be proved like any other fact.(^) This part of the statute is retrospective, and therefore an oral acknowlfedgment or promise, though made before the first January, 1829, when the statute came into operation, is inadmissible in evidence. (g') Entries on the bill, or payment of interest or principal, in the handwriting of the plaintiff, were formerly evidence to take the debt out of the statute ; but now the 9 Greo. 4, c. 14, s. 3, enacts, that no endorsement or memorandum of any payment, written or made after the 1st January, 1829, upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the statute. It may now, therefore, be advisable that any indorsement of payment of interest, or part payment of principal, should be written by the debtor and signed by both parties ; signed by the creditor, as evidence in favor qf the debtor ; written and signed by the debtor, to keep the security alive in favor of the creditor. Indorsements of the payment of interest are presumed to have been written at the time they bear date.(r) As an entry by a person deceased against his interest is evidence in an action brought by. his personal representatives, such an entry of payment of interest is admissible in an action by them on a bill or note for the purpose of proving payment. But if the entry be on the bill or note itself, payment so proved, though admissible, would not by the express words of the statute be sufficient to take the debt out of the statute. Yet if the entry were on some other paper it seems it would not only be admissible but sufficient. For the expression " other writing " in the statute only means any other writing containing the contract.(s) *Eighthly, as to the mode in which the statute is to be L -J taken advantage of. (o) Waters v. Tompkins, supra ; Bevan v. Gething, 3 Q. B. 740 (43 E. 0. L. R.) ! Baildon v. Walton, 1 Exch. 632. (p) Cleave T. Jones, in error, 6 Exch. 5T3. (g) Towler v. Ohatterton, 6 Bing. 258 ; 3 M. & P. 619, s. c. ; Hilliard v. Lenaid, Moo. & M. 297 (22 E. C. L. E.). (?•) Smith V. Battens, 1 M. & Bob. 341. (s) Bradley v. James, 22 L. J., C. P. 193 ; 13 C. B. %22 (76 E. 0. L. R.), s. o. IN ITS APPLICATION TO BILLS AND NOTES. 521 A public act need not in general, before the recent alterations of the law,(i) have been pleaded. But to this rule (except in an action of ejectment) the Statute of Limitations, 21 Jac. 1, c. 16, ■was an exception. It was once held, that the statute need not be pleaded where it appeared on the face of the declaration that the plaintiff was too late.(M) But it was afterwards settled that it must, even in that case, be pleaded ; for peradventure the plaintiff may be within one of the saving clauses. (a;) It must now be pleaded in all cases. There are two modes of pleading the Statute of Limitations : " That the defendant did not undertake within six years ;" — "that the action did not accrue within six years."{y) Wherever the contract is executory, the former plea is bad.(a) The latter form is the safest and best plea in all actions, whether ,on contracts or for wrongs.(a) To a plea of set-off, the Statute of Limitations must be replied specially. (S) , A replication of the statute admits all the facts alleged in the plea, and only raises the question whether the cause of set-off ac- . crued to the defendant within six years.(c) Thus, where the de- fendant pleaded that the plaintiff had given his promissory note to C, that 0. was dead, and that P. was *C.'s administrator, who had before the action indorsed the note to the de- L J [t] R. H. T. i Will. 4. (m) Brown t. Hancock, Ore. Car. 115, (x) Hawkings v. Billhead, Oro. Oar. 464 ; Puckle v. Moor, 1 Vent. 191 ; Lee T. Rogers, 1 Lev. 110 ; Gould y. Johnson, 2 Ld. Raym. 838. (y) Before the Uniformity of Process Act, the plaintiff might (except in actions by original) at his election, have treated either the writ or the bill as the commence- ment of the suit, and therefore might have pleaded that the action did not accrue within six years before the exhibiting of the bill, or before the commencement of the suit, and the latter is the proper mode of pleading now. 0. L. P. Act, 1852, Sched. (B.) A writ should not be replied specially, but given in evidence. Dickenson v. Teague, 1 C, M. & R. 241. {a) Gould V. Johnson, 2 Salk, 422 ; 2 Ld. Raym. 838, s. o. (a) 1 Saund. 33,/. A plea stating that a debt accrued more than six years ago, without stating that it did not accrue within the six years, is bad. Bush v. Martin, 2 H. & Colt. 311. (6) Chappie v. Durston, 1 0. & J. 1. (c) Gale V. Capern, 1 Ad. & Ell. 102 (28 E. C. L. R.) ; 3 N. & M. 863, s. o. 522 OF THE LAW OF SET-OFF AND MUTUAL CREDIT fendant, and the plaintiff replied that the cause of set-off had not accrued to the defendant within six years, it was held that all the facts stated in the plea were admitted, (ci) A replication- in assumpsit to a plea of the statute must he con- sistent with the promises laid in the declaration. For example, if the original promise were absolute, the promise laid in the replica- tion must not be conditional.(e) The plaintiff may reply to a plea of the statute, that he is within the saving clause, or rather such parts as are unrepealed. Lastly, independently of the statute, if a note be twenty years old,(/) it will be presumed to have been paid, in the absence of circumstances tending to repel the presumption; (^) The lapse of thirteen years has been held sufficient to raise a presumption of the repayment of a loan not secured by a note.(A) [*349] *CHAPTER XXVII. OF THE LAW OF SET-OFi" AND MUTUAL CREDIT IN RELATION TO BILLS AND NOTES. NATUEE OF SET-OFi' .... 349 UNKNOWN TO THU COMMON LAW . . 350 RECOQNIZED IN EQUITT , . . 350 INTEODUOED BY STATUTE . . . 350 DIVISION OF THE SUBJECT . . . 351 THE GENERAL STATUTES OF SET-OFF . 351 THE SUMS TO BE SET OFF MUST BE DEBTS 351 LEGAL DEBTS 351 SUBSISTING DEBTS .... 352 ACTUALLY DUE 352 AND AT TIME OF TRIAL . . . 352 MUTUAL . . ... 352 STATUTES PEBMIS'SIVE, NOT lUPEBA- TITE ...... 353 PLEADING 354 SET-OFF IN BANKRUPTCY . . .354 WHEN THE MUTUAL CREDIT MUST HAVE EXISTED ..... 354 FRAUDULENT SET-OFP, . . ■ 365 . (rf) Gale T. Oapern, 1 Ad. & EU. 102 (28 B. 0. L. R.) ; 3 N. & M. 863, s. o. (e) Tanner v. Smart, 6 B. & G. 606 (13 E. 0. L. B.) ; 9 D. & By. 549, s. o. ; Hay- don T. Williams, 7 Bing. 168 (20 E. 0. L. R.) ; 4 M. & P. 811, s. o. (/) Such, for two hundred years, has been the common law as to a bond. The' defence was introduced into Ireland by statute 8 Geow, 1, c. 4, and into England by the 3 & 4 Will. 4, c. 42, s. 3. {g) Duffield v. Creed, 5 Esp. 52. > (A) Cooper v. Turner, 2 Stark. 497 (3 B. C. L. B.). IN RELATION TO BILLS AND NOTES. 523 ATTEMPT TO DEPRIVE Off SET-OFF . 356 WHAT MDTUAI, CREDIT IS . . . 356 NEED NOT BE OF MONEY . . . 356 THE DEBTS NEED NOT BE DUE . . 356 MUTUAL CREDIT NEED NOT BE INTENDED 357 BREACH OF TRUST .... 357 DOES NOT EXTINGUISH A LIEN . . 351 HOW MUTUAL CREDIT. IS TO BE TAKEN ADVANTAGE OF ... . 357 SET-OFF IN EQUITY .... 358 OF OASES WHERE A STIPULATION, NOT THE SUBJECT OF A SET-OFF, IS A BAB TO THE ACTION . . . 359 CoMPBNSATio, in the Roman law, corresponds with set-oiF in the English law : but the provisions in the civil law, for setting one demand against another, are more liberal and extensive than in ours. Oompensatio is defined by the civilians, debiti et ckediti INTER SB CONTRIBTJTIO.(a) Set-off signifies the^ subtraction, or taking away of one demand from another opposite or cross demand, so as to extinguish the smaller demand and reduce the greater by the amount of the less, or if the opposite demands are equal, to extinguish both. It was also, formerly, sometimes called stoppage, because the amount sought to be set off was stopped, or deducted from the cross demand. Set-off is in all eases useful to prevent circuity of action : but, where one of the parties is dead, insolvent, bankrupt, or removed beyond the jurisdiction of the English Courts, it is absolutely necessary, to prevent gross injustice. *Tet it would seem that set-off is unknown to the com- p^^q^m mon law, perhaps because it was thought very inconve- ■- ^ nient to try two cross demands in a single action, and because, in the early stages of our jurisprudence and commerce, its necessity was not so apparent. Some writers have indeed held, that there is such a thing as a set-off by action at common law ;(5) but it is conceived that the authorities cited in support of this doctrine are cases rather of conditional contract, or of payment, than of set-off. It is true that Lord Mansfield says,(c) that " where the nature of the transaction consists in a variety of receipts and payments, the law allows the balance only to be the debt;" but that is, because the entries on each side of an account current are by the usage and understanding of trade mutual payments rather than mutual cross demands. (o) Dig. 16, 2, 1. (J) Montague on Set-off, pp. 1, 2. (c) Green v. Farmer, 1 "W. Bl. 651 ; 4 Burr. 2214, s. o. 524 OF THE LAW OF SET-OFF AND MUTUAL CREDIT Where, indeed, parties agree that mutual debts shall be set-off, that agreement amounts to payment. Bat the law itself does not apply mutual payments in extinguishment of each other.(c?) But though the practice of set-off was unknown to courts of law before the statutes, it was recognized in courts of equity long before :(e) and the want of it at law was found productive of great injustice. " The natural sense of mankind," says Lord Mansfield, " was first shocked at this doctrine in the case of bankrupts'; they thought it hard that a person should be bound to pay the whole that he owed to a bankrupt, and receive only a dividend of what the bankrupt owed him." This defect, therefore, was supplied in the case of bankruptcy, by the statute 4 Anne, c. 17-(/) Afterwards by the statutes of Geo. 2, the same equitable provision was made for the set-off of debts generally in the courts of law, and especially after the death of one of the parties. Then the Lords' Act, and the Acts, for the Relief of the Insolvent Debtors, adopted the same provision ; and, lastly, the courts of law, anxious to do justice at the termination as ^^ , , well as at *the commencement of a suit, in the exercise of r 3511 ... . . •- -■ their 'equitable jurisdiction over their respective suitors, have allowed the set-off of costs and judgments. In examining the subject of set-off and mutual credit, in its rela- tion to negotiable instruments, let us collsider, first, the provision of the general statutes of set-off; secondly, of the Bankrupt Act, and the Acts for the Relief of Insolvent Debtors ; and thirdly, the doctrine of the Courts of equity. The fourth branch of the sub- ject, I mean the set-off of costs and judgments in different Courts, is, perhaps, foreign to the design of this Treatise ; but it may be proper to notice, lastly, a few cases, in which a stipulation, though not properly the subject of a set-off, is yet held to be a bar to the action^. (d) See the American authorities, Byles on Bills, 4th American ed. (e) In equity if there be cross demands and one demand be equitable, and the other legal, there is set-off, if there would have been set-off at law, had both the demands been legal. Freeman v. Lomas, 9 Hare, 109 ; Cochrane v. Ureeii, 30 L. J., 0. P. 9Y i 9 0. B., N. S. 443 (99 B. 0. L. R.), s. o. ; Wilson v. Gabriel, 4 B. & Smith, 243 (116 E. L. O.K.). (/) Green t. Farmer, 1 W. Bl. 651 ; 4 Burr. 2214, s. o. IN RELATION TO BILLS AND NOTES. 525 First, The general statutes of set-off are, the 2 Geo. 2, c. 22, s. 13, and the 8 Geo. 2, c. 24, s. 4. These statutes only give a set-off in case of mutual debts; that is, of ascertained money de- mands.(5f) Hence it follows, that there can be no set-off unless the demand for which the action is brought, and the counter demand sought to be set off, are both of them debts properly so called. Therefore, there can be no set-off at all to an action in form ex delicto, as tro- ver, nor to an action ex contractu, unless brought for a liquidated sum. (A) Therefore, also, a guarantee cannot be set off.(»)(l) [g) Though secured by a penalty, 8 Geo. 2, o. 24, s. 5. See Collins v. Collins, 2 Burr. 820; Lee v. Lester, 1 C. B. 1008 (62 E. 0. L. E.). (A) In America it has been held that damages are unliquidated where there is no criterion provided by the parties, or by the law operating on the contract, by which to ascertain the amount. But in Pennsylvania and Illinois an unliquidated cross demand, arising from a distinct contract, may be set off. This arises from the ab- sence of a separate administration of equity. Byles on Bills, 4th American ed. (t) Crawford v. Stirling, 4 Esp. 207 ; Morley v. Inglis, 4 Bing., N. 0. 58 (33 E. C. L. R.) ; 5 Scott, 314, s c. See Crampton v. Walker, 30 L. J., Q. B. 19. (1) In an action for damages for negligence in keeping the plaintiff's sheep, founded upon a special written contract, the defendant will not be permitted to deduct from the damages the compensation which he claims for keeping the sheep. Such a compensation, if any be due, must be sought in a distinct action, Crownin- shield V. Robinson, 1 Mason, 93. So no set-off is admissible in an action on an open policy of insurance, although the demand be for a total loss, as the damages are uncertain and unliquidated. Gordon v. Bowne, 2 Johns. 150. But premium notes may be deducted under an express stipulation in the policy to that eflfSct. Cleve- land V. Clap, 5 Mass. 201 ; Dodge v. Union Marine Ins. Co., 17 Ibid. 471. In an action for the recovery of damages for the breach of a warranty in the sale of goods, defendant is not entitled to a set-off of demands against the plaintiff. Wilmot V. Hurd, 11 Wendell, 584. See also Dowd v. Fawcett, 4 Devereux, 92 ; George v. Cahawba Eailroad Co., 8 Alabama, 234. An unliquidated demand cannot be pleaded in set-off. De Tastett v. Croussillat, 2 Wash. 0. C. 132 ; State v. Welsted, 6 Halsted, 397 ; Hepburn v. Hoag, 6 Conn. 613 ; McCord v. Williams, 2 Alabama, 71 ; Woodruff v. Laflin, 4 Pike, 527 ; Horaas y. McConnell, 3 McLean, 81; Whitaker v. Robinson, 8 Smedes & Marshall, 349; Hawks V. Lands, 3 Gilman, 227 ; Smith v. Smith, 1 Smith, 337 ; Crenshaw v. Jackson, 6 Georgia, 509. Damages resulting from the breach of a contract are unliquidated where there is no criterion provided by the parties, or by the law operating on the contract, by which to ascertain the amount of the damages McCord v. Williams, 2 Alabama, 71. It is a general rule that where indebitatus assumpsit will lie upon a simple contract, the debt due thereon may be pleaded in set-off. Austin V. Feland, 8 Missouri, 309. A debtor draws and delivers to his creditor an order on a third person payable at sight, and directs the amount, when received, to 526 OF THE LAW OF SET-OFF AND MUTUAL CREDIT The subject of set-ofF at law must be a legal, and not a mere equitable debt ; and, therefore, the assignee of a bond cannot set off the amount secured by that instrument,(A) but the indorsee'or assignee of a bill or note may set it off, because negbtiable instru- ments are assignable at law. P^nrn-. *It must be a subsisting legal debt; therefore, a debt barred by the Statute of Limitations cannot be set off.(^)(l) So a debt, satisfied in contemplation of law> by a discharge of the debtor out of execution, cannot be set off.(m) But the defendant may set off a debt due to him; though he have obtained a verdict against the plaintiff in a former action,(w) or a judgment, or though he have even taken him in execution, if the debtor has not been discharged, (o) But the debt to be set off need not necessarily be (ii;) Wake V. Tinkler, 16 Bast, 36. But an equitable debt may be set off by an equitable plea. See ante, p. 350 n. («). (Z) Bull. N. P. 180. .(m) Jacques v. Wltby, 1 T. B. 561. (n) Baskerville v. Brown, 2 Burr. 1229. (o) Peacock v. Jeffrey, 1 Taunt. 426. be placed to tbe credit of his account. The creditor, without the knowledge or assent of the drawer, takes the drawee's acceptance payable at sixty days, and before the expiration thereof the acceptor dies insolvent. Held, that the drawer's claim against his creditor on account of the draft was a claim for unliqui- dated and uncertain damages, for the failure to collect it, and could not be allowed as a set-off in a suit brought by the creditor to recover the original demand against the drawer. Harrison v. Wortham, 8 Leigh, 296. But unliquidated damages may be set-off, under the plea of payment, in an action arising from the same transac- tion. It is" admitted in such cases rather as an equitable defence than in strictness a set-off. Hubler v. Tamney, 5 Watts, 51 ; Gogel v. Jacoby, 5 Serg. & Rawle, 117; Henion v. Morton, 2 Ashmead, 150 ; Abercrombie v. Owings, 2 Richardson, 127 ; Turnpike Co. v. Harris, 8 Humphrey, 558 ; Elliot v. Heath, 14 N. Hamp. 131. In Pennsylvania, however, an unliquidated cross demand, arising from a distinct and independent contract, may be set off. Ellmaker v. Franklin Fire Ins. Co., 6 Watts & Serg. 439 ; Phillips v. Lawrence, Ibid. 150. So also in Illinois. Edwards v. Todd, 1 Scam. 462; Kaskaskia Bridge Co. v. Shannon, 1 Oilman, 15 ; Wheeler V. Raymond, 5 Cowen, 231; 9 Ibid. 295; Gilchrist v. Leonard, 2 Bailey, 135;. Bell V. Horton, 1 Alabama, 413 : Carew v. Nonhrup, 5 Ibid. 367 ; Smith v, Taylor, 9 Ibid. 633; Bowen v. Snell, 11 Ibid. 379. In those States, how- ever, in which there is no separate administration of equity, but the principles of equity are adopted and enforced through common law forms, as in Pennsylvania, a different rule of necessity prevails. Murray v. Williamson, 3 Binney, 135; Morgan V. Bank of North America, 8 Serg. & Rawle, 88 ; Beesley v. Crawford, 19 Ohio, 126. (1) Gilchrist v. Williams, 3 Marshall, 235; Williams v. Gilchrist, 3 Bibb, 49 ; Turnbull v. Strohecker, 4 McCord, 210 ; Crist v. Garner, 2 Penna. Rep. 251; Mad- den V. Madden, 2 Rep. Const. Court, 350 ; Jacks v. Moore, 1 Yeates, 391. IN RELATION TO BILLS AND NOTES. 527 one for which an action could be brought. Therefore an unsigned attorney's bill may be set off.(p) And the debt roust exist not only at ihe commencement of the action, but at the time of plea pleaded, and the plea must aver that the. plaintiff still is indebted to the defendant.(g') The demand must have been a debt strictly so called ; that is, a debt actually due and payable at the commencement of the ac- tion. (r) Therefore a bill or note cannot be set off unless due, and in the defendant's hands before the issuing of the writ.(s) And it must be a debt still due at the time of trial. There- fore it may be replied that since the plea the plaintiff has paid the debt.(«)(l) [p) Harrison v. Turner, 16 L. J., Q. B. 295 ; 10 Q. B. 482 (59 B. C. L. E.), s. c. (q) Dendy v. Powell, 3 M. & W. 442. (r) Richards v. James, 2 Exch. 47L («) Evans t. Prosser, 3 T. R. 186 ; and see Braithwaite v. Colemafi, 4 Nev. & Man. 654 (30 E. C. L. R.). {t) Eyton V. Littledale, 18 L. J., Exch. 369 ; 4 Exch. 159, s. o. ; Briscoe t. Hill, 10 M. k W. '?35. (1) The debt must be existing between the parties at the commencement of plain- tiff's suit. Jefferson County Bank t. Chapman, 19 Johns. 322 ; Carpenter t. But- terfield, 3 Johns. Oas. 145 ; Huling v. Hngg, 1 Watts & Sevg. 418 ; Cox v. Cooper, 3 Alabama, 256 ; Carfrew v. Canavan, 4 Howard, Miss. 370; Kelly v. Garrett,! Gilman, 649 ; Johnson t. Comstock, 6 Hill, 10 ; Whitaker v. Turnbull, 3 Harrison, 172 I Varney t. Brewster, 14 N. Hamp. 49 ; Edwards v. Temple, 2 Harrington, 322. A permission to the defendants to use a, bill as a set-off, and to be liable to the owner only in the event of his being able to set it off, is not such a property in the bill, as makes it the subject of set-off. Adams v. McGrew, 2 Alabama, fe75 ; McDonald v. Harrison, 12 Missouri, 447. Where a note, not negotiable, was assigned for a valuable consideration, and an action Was brought for the benefit of the assignee in the name of the payee, it was held that the maker might set off a debt due to him at the time of the assignment. Sanborn v. Little, 3 N. Hamp. 539. The defendant sued by the assignee of a note cannot set off a claim against the assignor, unless he shows that he held it at the time of the notice of the assignment. Ritchie V. Moore, 5 Munford, 388 ; Stewart v. Anderson, 6 Oranch, 203. In case of mutual demands existing ai the death of a decedent, they may be set off in an action by the executor or administrator. Bordman v. Smith, 4 Pick. 212. Light v. Lieninger, 8 Barr, 403. In an action by an administrator for a debt due to his intestate, the defendant cannot set off a debt due from the intestate, purchased by the defendant after the death of the intestate. Root v. Taylor, 20 Johns. 137. A debt due from an intestate in his lifetime, cannot be set off against one which has accrued to the administrator since the death of the intestate. Wolfersberger v. Bucher, 10 Serg. &Rawle, 10; Colby v. Colby, 2 N. Hamp. 419; Pry v. Evans, 8 Wendell, 530; Hills v. Lumpkin, 1 Kelly, 511. In suits by or against executors or administrators, 528 OF THE LAW OP SET-OSP AND MUTUAL CREDIT The debts must be mutual ; for the statutes only authorize the setting off of mutual debts. Therefore, in ihe case of partnership debts, if the firm sue, only a debt due from all the partners can be set off. So, if the firm be sued, they cannot set off a debt due to one or more of the partners, but not to all.(M) But one partner may settle a debt due to the firm, by setting off against it a debt due from himself,(a;) and though, as it seems, he should in so doing be acting in fraud of his co-part- ners. The debts and credits of a firm survive at law to the sur- [-*qcq-| viving partner, *and a Court of law will not take notice of his equitable claims and liabilities. His separate debts and credits, and his debts and credits as representative of the firm, are considered as of the same nature, and may, therefore, be set off against one another. Thus, when a surviving partner sues for a partnership debt, a separate debt due from him may be set off. So, when he sues for his separate debt, a debt due from the former .partnership may be set off. When he is sued for a partnership debt, he may set off a debt due to him individually. And when he is sued for a separate debt, may set off a debt due to the firm.(^) And if one of two joint cbntractors is sued alone, he may plead in bar that the promises were made by him and another jointly, and that the set-off is due from the plaintiff to him and his co-con- tractor. (2)(1) («) But the Roman law was otherwise ; one partner might claim a set-off due to his partner, " ex causa societatis." Dig. 45, 2, 10 ; Cujacius in Cod. i, 31, 9. (x) Wallace v. Kelsall, 7 M. & W. 264. {y) Slipper v. Stidstone, 1 Esp. 47 ; 5 T. E. 493, s. 0. (a) Stackwood v. Dunn, 3 Q. B. 822 (43 E. C. L. R.). when the estate is insolvent, a debt not due at the time of the death of the testatit^ or intestate, although it became due before the commencement of the suit, cannot be set otf. It is otherwise if the estate be solvent ; in that case it makes no differ- ence that the debt proposed to be set off was not due at the time of the death of the testator or intestate, if it were due when the suit was commenced. Bosler v. Exchange Bank, 4 Barr, 32. See Rawson v. Copland, 3 Barbour, Ch. Rep. 166; Baj V. Dennis, 5 Georgia, 357. There cannot be a set- off against a set-off. Ulrich v. Berger, 4 Watts & Serg. 19 ; Hudnall v. Scott, 2 Alabama, 569 ; Gable v. Parry, 13 Penna. State Rep. 181. (1) A joint debt cannot be set off against a separate debt, nor a separate debt against a joint debt. McDowell v. Tyson, 14 Serg. & Rawle, 300 j Porter t. Nekei- vis, 4 Randolph, 359 ; Howe v. Sheppard, 2 Sumner, 409 ; Wood y. Carlisle, 6 N. Hamp. 27 ; Henderson v. Lewis, 9 Serg. & Rawle, 379 ; State Bank v. Armstrong, i Devereux, 519; Vose v. Philbrook, 3 Story, 335; BuUard v. Dorsey, 7 Smedes 4, Marshall, 9; Albright v. Aldrlch, 2 Texas, 166; Burgwin v. Babcock, 11 Illinois, 28. IN EELATION TO BILLS AND NOTES. 529 The indorsee of an overdue note is not liable to the set-off of a debt due from his indorser to the maker.(a)(l) To examine minutely what are mutual debts when the characters of principal and agent, of executors and administrator8,(6) and of husband and wife intervene, would be to deviate from our main subject, (c)(2) (a) Burrough v. Moss, 10 B. & C. 558 (21 E. 0. L. R.). (6) See Blakesley v. Smallwood, 8 Q. B. 538 (55 E. C. L. R.) ; Reea v. Watts, 11 Exch. 410 ; Mardall T. Thellusson, 6 E. & B. 976 (88 E. C. L. R.), (c) See, however, Byles on Bills, 3d American ed. 414 to 417. One of several defendants who are sued upon a joint note may set off a demand due to himself from the plaintiff, against the demand due upon the joint note. Powell T. Hogne, 8 B. Monroe, 443. Where a note was made payable to one of a firm for partnership property, and passed to a creditor of the firm, to whose use a suit was brought in which set-off was pleaded of individual notes of the payee, held com- petent to show in answer that the note was by fraud or mistake made payable to one of the firm. Bourne v. Wooldrldge, 10 B. Monroe, 492. One of two defendants may set off a debt due to him by the plaintiff, unless there is some superior equity in a third person. Stewart v. Coulter, 12 Serg.. & Rawle, 252 ; Ohilderson v. Ham- mond, 9 Serg. & Rawle, 68. One of several partners sued for a separate debt may set off a debt due by the plaintiff to the firm, provided that it appears that the set- off is made with the express assent of the other partners and the plaintiff is insolvent. Wrenshall v. Cook, 7 Watts, 464. See Craig v. Henderson, 2 Barr, 261. (1) In what cases set-off is allowed against the indorsee of claims against the maker of a note indorsed after maturity. Collins v. Allen, 12 Wendell, 356; Sar- gent V. Southgate, 5 Pick. 312; Driggs r. Rockwell, 11 Wendell, 504; Hughes v. Large, 2 Barr, 103; Unseld v. Stephenson, 33 Missouri, 161; Anderson v. Busteed, 5 Duer, 485 ; Bond T. Fitzpatrick, 4 Gray, 89 ; Williams v. Banks, 11 Maryland, 198; Kilonau v. White, 6 Florida, 45 ; Shipman v. Bobbins, 10 Iowa, 208 ; Odiorne > . Woodman, 39 New Hampshire, 541 ; Phipps v. Shegogg, 30 Mississippi, 241. (2) Huvlbut V. Insurance Co., 2 Sumner, 471 ; McKinney v. Bellows, 3 Blackford, 31 ; Scott v. Rivers, 1 Stewart & Porter, 19 ; Durrock v. Hay, 2 Yeates, 208 ; Mor- rison V. Furnham, 1 Marshall, 41; Wain v. Wilkins, 4 Yeates, 461 ; Gordon v. Bowne, 2 Johns. 150; Warner v. Barker, 3 Wendell, 400; Pitkin v. Pitkin, 8 Conn. 325 ; BuUard v. Dorsey, 7 Smedes & Marshall, 9 ; Minifee v. Ball, 2 English, 520 ; Billiard T. Walker, 11 Illinois, 644. A claim against the plaintiff in a representa- tive capacity cannot be set off in a suit brought in an individual capacity. Grew y. Burditt, 9 Pick. 265 ; Snow v. Conant, 8 Verm. 308 ; Cummings v. Williams, 5 J. J. Marshall, 384 ; Wright v. Rogers, 3 McLean, 229. Claims against an agent, known to be such when the contract upon which suit is brought was entered into, cannot be set off against i debt due the principal. Wilson v. Cod man, 3 Cranch, 193 ; Gordon v. Church, 2 Caines, 299 ; Broune v. Robinson, 2 Caines' Gas. 341 ; Foster V. Hoyt, 2 Johns. Gas. 327; Carman v. Garrison, "13 Penna. State Rep. 158. A claim of a surviving partner' is liable to a set-off of his individual debt, unless there be some equitable interest in another, wMch a court of law can protect. Lewis V. Culbertson, 11 Serg. & Rawle, 48 ; Meader v. Scott, 4 Vermont, .26 ; Cow- der V. Elliott, 2 Missouri, 60; Holbrook v. Lackey, 13 Metcalf, 132. In an action 34 530 OJ THE LAW OF SET-OFF AND MUTUAL CREDIT ^ If a note be given to a married woman, the husband may, as we have seen, either sue alone or join his wife. If he sue in his own name, he i^ not liable to a set-off due from his wife, dum «oZa, but he is to a set-off due from himself.(d) If he join her, it should seem, he is liable to a set-off due from his wife, but he is not to one due from himself.(e)(l) . The general statutes of set-off are permissive, not imperative. Therefore, if a defendant have a cross demand, he may either set it off, or bring a cross action for it, at his option.(/)(2) And he may (supposing his demand to be greater than the de- mand against which he sets it off), plead his set-off and bring an action at the same time for the same sum. If he has a verdict in the action where he is plaintiff, and also a verdict on his plea of set-off in the action where he is defendant, he must consent to re- duce his verdict in the action * where he is plaintiff, by the L -I amount to which he has made his set-off available in the action where he is defenda,nt.(^) A discharge under the Insolvent Debtors' Act must be replied specially. (A) (d) Burrough v. Moss, 10 B. & C. 558 (21 B. C. L. R.). («) Ibid. , ,(/) BaskerviUe v. Brown, 2 Burr. 1229. {g) Ibid. (A) Ford V. Dornford, 8 Q. B. 583 (55 E. 0. L. E.). upon a promissory note against principal and surety, a demand due from the plain- tiff to the principal may be set off. Mahurin v. Pearson, 8 N, Hamp. 539 ; Harrison V. Henderson, 4 Georgia, 198 ; Contra: Woodruff v. State, 2 English, 333. So in an action agaijist the surety alone, such set-off may be made with the assent of the principal. Lynch t. Bragg, 13 Alabama, 773. (1) Where a suit has been brought by husband and wife for the rent of premises belonging to the wife, the tenant may set off a demand against the husband alone. Ferguson v. Lothrop, 15 Wendell, 625 ; Wisbart v. Downey, 15 Serg. & Eawle, 77. In an action by husband and wife for a legacy left to the wife "for her own use," a debt due from the husband to the testator cannot be set off. Jamison t. Brady, 6 Serg. & Rawle, 466. The debt of the husband cannot be set off after divorce, though the wife's claim accrued during coverture. Pink v. Hake, 6 Watts, 131. (2) The law does not apply mutual debts in extinguishment of each other. Car- malt V. Post, 8 Watts, 410 ; Post v. Carmalt, 2 Watts & Serg. 70 ; Ulrich v. Berger, 4 Ibid. 19 ; Morton v. Bailey, 1 Scam. 213. A set-off is in the nature of a cross- action, and may be withdrawn in analogy to suffering a nonsuit, where the evidence is found to be too weak to support it | but like a nonsuit, the withdrawal of it ought to be explicit. Muirhead v. Fitzpatriok, 5 Watts k Serg. 506. IN KBLATION TO BILLS AND NOTES. 531 . Under the informal replication that the plaintiff never was in- debted, he cannot prove payment, as he might under the common replication that he was not, nor is, indebted. (i) The plaintiff may under the common replication show want of mutuality.(y) If a defendant does not deliver particulars of set-off in com- pliance with a Judge's order, he is precluded from giving evidence of it at the trial, (ifc) Secondly, Set-off under the Bankrupt Act. Set-off in bankruptcy was first given by the 4th Anne, c. 17, s. 11, re-enacted by 5 Geo. 2, c. 38. These statutes enact that the mutual credit must have been before the bankruptcy ; and, there- fore, it was decided, where a debtor to the estate claimed to set off notes of the bankrupt, that it was for him to show that he took the notes before the act of bankruptcy.(Z) The 46 Geo. 3, c. 135, s. 3, enacted, that one debt or demand might be set off against another, notwithstanding a prior act of bankruptcy, provided the credit were given to the bankrupt two months before the date of the commission, and provided the person claiming the set-off had no notice of an act of bankruptcy, or that the bankrupt was insQl- vent, or had stopped -payment. The 6 Geo. 4, c. 16, s. 50 (re- pealed, but re enacted by the 12 & 18 Vict. c. 106, s. 171),(m) goes still further, and allows all debts to be set off, whether con- tracted before or after the act of bankruptcy, provided no notice of a specific act of bankruptcy when the credit was given can be brought home to the debtor. In case, therefore, of a country banking house stopping payment, there does not now seem any necessary legal objection to a set-off by the debtors of a firm, of notes *bought up by them in the interval between the stopping payment and the issuing of the commission. If, *- ^ (t) Stockbridge v. Sussams, 3 Q. B. 239 (43 E. C. L. R.) ; Miller v. Atlee, 3 Exch. 799. (J) Arnold v. Bainbridge, 9 Exch. 153. (A) Ibbett T. Leaver, 16 M. & W. 770 ; Young v. Geiger; 18 L. J., 0. P. 43 ; 6 C. B. 552 (60 E. C. L. E.), s. o. (l) Marsh v. Chambers, 2 Stra. 1234 ; Dickson v. Evans, 6 T. R. 57 ; Oughterlony V. Easterby, 4 Taunt. 888 ; Moore v. Wright, 6 Taunt. 517 (1 E. 0. L. R.) ; 2 Marsh. 209; 8. 0. (m) Not repealed or altered in this respect, by the 24 & 25 Vict c. 134. 532 OF THE LAW OF SET-OFF AND MUTUAL CKEDIT indeed, when the doors and windows of a bank are closed, the bankers either withdraw from the bank, or shut themselves up in it, and so avoid any communication with their creditors, they commit an act of bankruptcy by keeping house or absenting tJienh selves, with intent to defeat their Weditor8.(w) But if on stopping payment and closing the bank, they are, from illness, unable to be seen, or the creditors are referred to them at their banking-house, or at their pTivate houses, the mere circumstance" of stopping pay- ment is not an act of bankruptcy ; and notes taken by a debtor to the firm, after knowledge that the firm had stopped payment, may be set oiF.(o) Notice of acts of bankruptcy by some members of a banking firm, without notice of an act of bankruptcy by another member, will take away the right to set oflF.(p) But a man cannot buy up and set off notes and bills, known by him, to have been given by the bankrupts for the accommodation of other persons. (j) A debtor to the bankrupt's estate cannot set off a bill or note transferred to him by the real ownerj even before the bankruptcy, for the mere purpose of being set off against a demand by the bankrupt's estate, so. that the real owner might receive 20«. in the pound, (r) For in sufch a case the debtor is a mere trustee for others, and having' no real cross demand of his own against the estate, cannot be allowed to set off another man's.(a) But if the notes were handed over to the debtor to the estate for an ante- cedent debt due to him from the owner of the notes, they may be set off.(i) Mere legal debts, without any beneficial interest in the creditor, may be set off under the general statutes of set-off, but not under the mutual credit clause. " The object of the mutual credit clause," says Parke, B., " is to do substantial justice between the parties, where a debt is really due from the bankrupt to the debtor to his estate."(u) («) Cumming v. Baily, 6 Bing. ?,",3 (19 E. C. L. R.); 4 Moo. & P. 36, s. o. (o) Hawkins v. Whitten, 10 B. & G. 217 (21 E. C. L. R.) ; 5 Man. & R. 219, s. o. ; Dickson t. Cass, 1 B. & Ad. 343 (20 B. C. L. R.). (p) Dickson v. Cass, 1 B. & Ad. 343 (20 E. 0. L. R.) ; and see Craven v. Bdmond- son, 6 Bing.. Y34 (19 B. C. L. R.) ; 4 Moo. & P. 622, s. o. (y). Ex parte Stone, 1 G. & J. 191. (r) Pair v. M'lvor, 16 Bast, 130 ; Lackington v. Combes, 6 Bing. N. 0. 71 (37 E- C. L. R.); 8 Scott, 312, B. 0. («) Forster v. Wilson, 12 M. & W. 191. («) Ibid. (u) Ibid. IN KELATION TO BILLS AND NOTES. 533 *Nor can the assignees of the bankrupt deprive a man r*Qco-i of a set-off, once exi8ting.(2;) We have seen, that the general statutes of set-off only authorize a set-off of mutual debts; but the Bankrupt Act authorizes the set-off of a mutual credit, as well as of a mutual debt. It has been decided that the term mutual credit is more compre- hensive than the expression mutual debts. In the first place, it has been held, that credit need not neces- sarily be of money. Therefore, where a trader, being indebted to a packer on a note of hand, sent him certain goods to pack, the trader having become bankrupt. Lord Hardwicke thought that the packer was entitled to set off against the price of the goods, not only the charge for packing, but the money due on the note.(y) This decision, however, goes further than any other, and was quali- fied very soon after by the same learned person. (s) The law is now taken to be, that, in order to set off goods, the property must have been deposited with an authority to turn it into money ; in other words, the mutual credit must be such as was intended to terminate in a debt.(a) Therefore it has been held, that where, in considera- tion of the bankrupt's acceptance, defendant promised to indorse a bill to the bankrupt, such promise was not a subject of mutual credit.(6) And the mutual credit must have actually existed between the bankrupt himself and the other party. (c) There may be mutual credit, though one of the debts consti- tuting it be not due ; as if it be a bond, bill, or note payable at a future Aa.y.[d) {x) Edmeads t. Newman, 1 B. & C. 418 (8 E. C. L. R.) ; Bolland t. Nash, 8 B. & C. 105 (15 E. 0. L. E.). (y) Ex parte Deeze, 1 Atk. 228. (2) Ex parte Ockenden, 1 Atk. 235. (a) Glennie v. Edmunds, 4 Taunt. 775 ; Rose v. Hart, 8 Taunt. 499 (4 B. C. L. R.) 2 Moo. 547, s. 0. ; Easum v. Cato, 5 B. & Al. 861 (8 B. C. L. R.) ; 1 Dowl. & E. 530 Sampson v. Burton, 2 B. & B. 89 (6 E. C. L. R.) ; Russell v. Bell, 8 M. & W. 277 A mere liability is insufficient. Abbott v. Hicks, 5 Ring. N. C. 578 (35 E. C. L. R. (J) Rose V. Sims, 1 B. & Ad. 521 (20 B. C. L. R.) ; but see Gibson v. Bell, 1 Ring, N. C. 743 (27 E. 0. L. R.) ; 1 Scott, 7l2, s. 0. (c) Young V. Bank of Bengal, 1 Moore's P, 0. C. 150. (rfj Ex parte Presoott, 1 Atk. 230 ; Atkinson T. Elliott, 7 T. R. 378. 534 OF THE LAW OF SET-OFF AND MUTUAL CREDIT An acceptance of the bankrupt's maybe set off as an ingredient p^qetr-i in mutual credit, notwithstanding. that it was not *due at the time of the bankruptcy, and was in the hands of an indorsee, (e) And where a bill is indorsed, credit may be deemed to be given to the indorser as well as to the acceptor, and therefore if the in- dorser become bankrupt, the indorsement may be an ingredient'in mutual credit. (/) A bill accepted fOr the accommodation of the bankrupt is within the mutual credit c]a,use,{g) and may, under that 'clause, be set off against eu demand by the assignees for money had and received to their use after their bankruptcy. (A) It is not necessary, to constitute mutual credit, that the parties both intended there should be mutual credit ; it is suflScient though one take, by indorsement from a 'third party, the note or accept- ance of another without his knowledge.^ But where goods or bills are deposited with a direction to turn them into money and apply the proceeds in a particular manner, if the party receiving the property is guilty of a breach of trust he cannot claim the benefit of a set-off under this section. (A) But mutual credit will not destroy a lien created by express contract. 0. held M.'s slcceptance for 24?., and sent M. an article to be repaired by him. It was agreed that C. should pay M. the amount of the repairs in ready money. Before the repairs were completed M. became bankrupt. Held, that C. could not, by vir- (e) Collins t. Jones, 10 B. & 0. T77 (21 E. 0. L. R.); BoUand v. Nash, 8 B. & C. 105 (15 E. C. L. R.) ; 2 Man. & R. 189. s. 0. ; Russell v. Bell, 8 M. & W. 277. (/) A,lsager V. Ourrie, 12 M. & W. 755; and see Starey v. Barns, 7 East, 435| see Young y. Bank of Bengal, 1 Moore's Priv. Gonucll Gases, 150. (g) Smith v. Hodson, 4 T. R. 211 ; Ex parte Bayle, Cooke's^kt. Law, 542; Ex parte Wagstaff, 13 Ves. 65: Bittleston v. Timmis, 14 L. J., C. P. 117; 1 C. B. 389 (50 B. 0. L. B.), s. 0. (4) Bittleston v. Timmis, and see Hulme v. Muggleston, 3 M. & W. 30. The mis- take in the marginal note of that ease is corrected in Bittleston v. Timmis, ubi supra. (j) Hankey v. Smith, 3 T. R. 507. (A) Key v. Flint, 8 Taunt. 21 (4 E. 0. L. R.) ; 1 Moo. 451, s. o. ; Ex parte Flint, 1 Swanst. 30; Buchanan T. Findlay, 9 B. & C. 738 (17 B. C. L. R.); 4 M. & Ry. 593, s. c. IN KBLATION TO BILLS AND NOTES. 535 tue of his cross-demand on the acceptance, sue M.'s assignees in trover for the article before paying the amount of the repairs. (Z) Set-off in bankruptcy may be either in an action at law, or before the commissioners. ' ; *A setroff under the Bankruptcy Act is available in all actions, whether for debt or damages. No plea or notice ^ -■ was formerly necessary, though it was usual to plead or give notice as , under the general statutes. But now by Rule 8, T. T. 1853, re-enacting R. A., 4 Will. 4, mutual credit must be pleaded. Where the assignees affirm the bankrupt's dealings, they let in his set-off.(Mi) An assignment under the old Insolvent Debtors' Act had no relation back to the commencement of the imprisonment, and therefore the assignees having declared on a sale by the insol- vent, after the imprisonment, and before the assignment, not on a sale by themselves, were subject to the defendant's set-off against the insolvent, (w) To an action for a debt due to the assignees in their official cha- racter, the defendant cannot plead a set-off due from the bankrupt before his bankruptcy,(o) But such a set-off may be the subject of mutual credit.(p) Thirdly, Set-off in equity. The jurisdiction in Courts of equity in set-off does not depend on the statute law ; it existed before any act of Parliament on the subject ; and has, since the statutes, been exertjised in cases which they will not reach. (g') Thus, where A. S. directed her bankers to invest a sum of money in the public funds, which they led her to believe they had done, when in fact they had not, A. S. afterwards joining her brother, J. S., in a joint arid several note to the bankers for money ad- vanced by them to J. S., and the bankers failing, Lord Eldon directed the sum due to A. S. to be set off(r) against the demand in a suit by the assignees against J. S. (/) Clarke t. Fell, 4 B. & Ad. 404 (24 E. 0. L. R.) ; 1 Nev. & Man. 244, s. c. (m) Smith v. Hodson, 4 T. E 211. (k) Sims T. Simpson, 1 Bing. N. 0. 306 (27 '&. 0. h. R). (o) Groom t. Mealey, 2 Bing. N. C. 138 (29 B. 0. L. R.) ; 2 Scott, 171, s. c; Wood T. Smith, 4 M. & W. 522. (p) See Bittleston v. Timmis, supra, (j) Story's Equity Jurisprudence, s. 1435. {r) Ex parte Stephens, 11 Tes. 24: and see Ex parte Hansom, 12 Yes. 346. 536 OF THE LAW OF SBT-OFP.. Equity will not relieve a party, who has neglected to plead a set-off at law.(s) But if the set-off were a mere equitable demand, not available at law, equity would assist. (*) There are cases in which a stipulation between the *par- L -' ties, though not the subject of a set-off, is a bar to the set-off. A release is, as we have seen, a discharge of the action, whether; at the date of the release, the bill were due or not. And a cove- nant not to sue at all is equivalent to a release. So, a release upon condition, or a general covenant not to sue upon condition, are each of them, after condition performed, a good defence. But a covenant not to sue for a certain time,(M) is neither an absolute discharge of the action, for that was not the intention of the par- ties, nor a suspension of it ; because it is a rule of law, that a per- sonal action, once suspended by the act of the parties, is gone for ever. In general, where an instrument is not the subject of a set-off, it can only bar the action by operating as a release. So that, if not under seal, it has no effect in barring the action, and no effect at all if made without consideration. But, in favor of commerae, this rule has been relaxed in the case of bills. We have seen, that an express renunciation by the holder of his claim on the acceptor, has been held a bar to an action by the holder against the acceptor. So, it has been decided, that an absolute or conditional simple agreement between parties to a bill, that .a party liable shall not be sued, operates as a defeasance or release. And it has been decided, that an indemnity has the same effeot.(a;) («) Ex parte Ross, Back, 127. [t) Townrow v. Benson, 3 Mad. 203. An equitable set-off may now be pleaded by way of equitable plea in an action at law. And see Cochrane v. G-reen, 9 C. B., N. S. 443 (99 E. C. L. R.) ; 30 L. J., C. P. 97, S. c. («) Ayliff V. Scrimshire, 1 Show. 46 ; ante, p. 230. {x) Carr v. Stephens, 9 B. & C. 758 (17 E. 0. L. R.) ; 4 Man. & R. 590, a. o. OF A LOST BILL OR NOTE. 537 *CHAPTER XXVIII. OP A LOST BILL OR NOTE. [*360] TITLE OB THE FINDIB PBOPER OOHESE FOR THE LOSES TO TAKE .... NOTICE OF LOSS . PRESENTMENT AND NOTICE OF DIS- HONOR or LOST BILL BILL IN THE HANDS OF AN ADVERSE PARTY WHETHER AN ACTION LIES ON A DE- STROYED BILL .... WILL NOT LIE ON A LOST BILL . 360 UNLESS NOT NESOTIABLE . 364 PLEADINe .... 364 360 LOSS AFTER ACTION BROUGHT . 364 361 LOSS OF HALF NOTE . 364 TROVER FOR LOST BILL 365 362 REMEDY FOR LOSER IN EQUITY . 365 AT LAW 366 362 NEW STATUTABLE JURISDICTION OF COURTS OF LAW . 366 362 ON WHOM THE LOSS OP A BILL TRANS- 363 MITTED BY POST, 40., WILL FALL 367 Though the finder of a lost bill or note acquires no property in it, SO as, on the one hand, to enable him to defend an action of trover brought by the rightful owner, or on the other, to sue the acceptor or maker, yet we have already seen that, if the fiiwier transfer a lost bill or note, which may pass hy delivery only, his transferee, provided he took it honestly, is entitled both to retain the instrument against the loser, and to compel payment from the parties liable thereon. Let us now inquire what steps the loser should take. And,- in the first place, it is settled that if bills or notes be lost or stolen out of letters put into the post office, no action lies against the Postmaster-General. " The case of the Postmaster," says Lord Mansfield, " is in no circumstance whatever similar to that of a common carrier ; but he is like all other public officers, such as the Lords Commissioners of the Treasury, the Commissioners of the Customs and Excise, the Auditors of the Exchequer, &c. ; who were never thought liable for any negligence or misconduct of the in- ferior officers, in their several departments. "(a) But *a r*oR-i-| deputy postmaster is liable for neglect in not duly deliver- ing letters. (S)(l) (0) Whitfield v. Lord Le Despencer, Cowp. 754 ; Lane t. Cotton, 1 Salk. 17. (J) Eowning v. Goodchild, 3 Wills. 443; 2 W. Bl. 906 j 5 Burr. 2716; Hordern v.Dalton, 1 0. & P. 181 (12 E. C. L. R.). (1) Maxwell v. Mcllroy, 2 Bibb, 211 ; Franklin v. Low, 1 Johns. 306; Dunlop v. 538 OF A LOST BILL OR NOTE. It is advisable that the loser should immediately give notice of the loss to the parties liable on the bill; for they will thereby be prevented from taking it up without due inquiry.(l) Public adver- tisement of the loss should also be given ; for, if any person who- soever discounts it with notice of the loss, that will be such strong evidence of fraud that he can acquire no property in it.(c) But (c) A public notification of the loss is not only advisable to prevent the transfer of lost or stolen bills or notes into the hands of bond fide holders, but there are cases in which it was formerly considered essential to the plaintiff's right to recover of those who might have taken the instrument. Se'e.the observations of Best,C.J.| in Snow t. Peacock, 3 Bing. 411 (11 E. 0. L. R.) ; 11 Moo. 286, s. o. The law formerly was, that if a man took a lost bill or note negligently,. he acquired no title against the rightful owner ; but if the loser had neglected to publish his loss, and the receiver took the note, not dishonestly, but negligently, then the negligenceiof the loser equalled the negligence of the receiver, a,o.dL,poiior erat conditio possidentif^ Snow V. Peacock, 3 Bing. 411(11 B. 0. L R.) ; 11 Moo. 284 ; Strange v. Wigney, 6 Bing. 677 (19 E. C. L. R.) ; 4 M. & P. 470, s. o. Thus, where the plaintiff was robbed of his pocket-book, containing an indorsed bill, and then advertised the pocket-book, saying nothing of the bill, but on the contrary, stating in the advertise- ment that the contents of the pocket-book were of no use to any but the owner, the Court of 0. P. held that lie was not entitled to recover against a negligent receiver'; for that his notice that the contents of the pocjiet-book were of no use to any but the owner, tended rather to mislead than to assist parties to whom the bill might be offered. Beckwith v. Corral, 3 Bing. 444. If due notice had been given of the loss, thenj though the receiver took the instrument bon&fide and without suspicion, i yet if he failed to exercise proper care and caution, as if he discounted or changed a bill or note of considerable amount for a stranger, without inquiry, he must have refi^nded. Gill v. Oubitt, 3 B. & 0. 466 (10 B. C. L. R.) ; 5 Dowl. & B. 624 ; Strange V. Wigney, 6 Bing. 677 (19 E. C. L. R.) ; 4 Moo. & P. 470, s. o. But the law on this subject Is now entirely changed. ' See the Chapter on Transfer, and the observations , of Lord Denman in Bartrum v. Caddy, 9 Ad. & B. 280 (36 E. C. L. R.) ; 1 Per. & Dav. 207, s. c. The plaintiff went to a public meeting in London with more than 5002. in his pocket, and entertaining some apprehensions of the company in which he found himself, kept his hand on his pocket, but notwithstanding that precaution was robbed, and, among other property, lost a Bank of England note for 2002. pay- able to bearer. He advertised his loss in the newspapers. Nearly two years after, this note was traced to the possession of the defendant, who received it, as he said, in payment of a debt on the Derby stakes, but could not recollect from whom. The Monroe, 7 Oranch, 242 ; Bolan v. Williamson, 2 Bay, 551 ; s. o. 1 Brevard, 181 ; Bishop V. Williapason, 2 Fairfield, 495 ; Schroyer v. Lynch, 8 Watts, 453 ; Teall v. Felton, 3 Barbour, S. C. 1 Comstock, 537. (1) Held not to be necessary to entitle the owner to maintain an action to recover the contents of a lost note. Dormady v. State Bank, 2 Scam. 236. It is proper for the loser to give immediate notice to the parties, and to publish notice of the loss ; but public notice, not brought home to the buyer, will not affect his title ; nor will the failure to give public notice preclude the owner from showing by other proof that the buyer took the note maid fide. Matthews v. Poythress, 4 Georgia, 287. OF A LOST BILL OR NOTE. 539 public notice is *of itself neither on the one hand sufficient rjiOf-o-i nor on the other indispensable. To operate at all it must be brought home to the party to be aflfected by it.(c?) We have already seen that, if the bill be transferable only by indorsement, a forgery can convey no title, and a payment by the acceptor or other pArty to a man, claiming under the forged indorse- ment, will not exonerate him. ' The party who has lost or destroyed a bill must, nevertheless, make application to the drawee for payment at the time it is due,(e) and give notice of dishonor ; for the bill might still have been paid with or without an indemnity, and the prior parties, by not having been advised of the dishonor, may have been prevented from pressing their respective remedies against parties liable to them.(/)(l) There are three cases in which a plaintiff cannot produce a bill ; it may be in the defendant's hands ; it may be destroyed ; or it may be lost. If it be in the defendant's hands, the plaintiff may give him notice to produce it ; and if the defendant will not do soj the plaintiff may give secondary evidence of its contents.( g) If it can be proved that the instrument, whether negotiable or plaintiff sued him in trover, and the Court held that the negligence of the plaintiff not being connected with the defendant's conduct, could not be set up as an answer to his claim, and that the defendant had not exercised due .caution in taking the note. Easley v. Crockford, 10 Bing. 243 (25 E. C. L. E.) ; 3 M. & Scott, 700, s. 0. ; see Snow y. Sadler, 3 Bing. 610 (11 E. 0. L. R.) ; 11 Moo. 506, a. o. The caution required of a person discounting was held to increase with the amount. See ante, Chapter on Transfer. {d) See %Ies on Bills, 3d American ed. 425. (e) It has been held in America that the loss of a bill is an excuse for a reason- able delay in demanding payment. Byles on Bills, 3d American ed. 426. (/) Thackray v. Blackett, 3 Camp. 164. (g) Smith v. M'Clure, 5 East, 477 ; 2 Smith, 433, s. o. (1) Hinsdale v. Miles, 5 Conn. 331. The fact that a bill is lost is an excuse for delay in making a demand upon the drawee, but for no moi;e than reasonable delay. Aborn v. Bosworth, 1 Rhode Island, 401. In order to charge the indorser of a lost promissory note, the owner must tender an indemnity to him and the maker at the time of demand and notice. Smith v. Rockwell, 2 Hill, 482. 540 OF A LOST BILL OR NOTE. not, has been destroyed, it was once held that secondary evidence of its contents was admissible, and that the rightful owner was entitled to recover. " If a bill be proved to be destroyed," says Lord Ellenborough, "I should feel no diflSculty in receiving evidence of its contents, and directing the jury to find for the plaintiflf. Even on a trial for forgery, the destruction of the instrument charged by the indictment to be forged, is no bar to the proceed^ ings. I remember a case before Mr, J. Buller, where the prisoner had destroyed ■s, bank note he was accused of having forged, by swallowing it; and the learned judge who presided held, that he might have been convicted without the production of the banb note ; and this doctrine was approved of by the whole profeB- r*"^fiS1 S'O"' "W ^"t t^is doctrine is now overruled *as to nego- tiable instruments, and it is settled that the owner of a destroyed bill or note, if negotiable, cannot, at law,[i) recovei" against the other parties,(y) whether the bill be actually indorsed or not. (A) Nor can he even sue on the consideration.(Z)(l) And it is also now clear that, if a bill, note, or check, negoti dMIl either by indorsement or by delivery only,(?w) be lost, no action will lie at the suit of the loser against any one of the parties to the instrument, either on the bill or note itself, or on the considera- tion.(w) "Upon the question," says Lord Tenterden, "whether (A) Pierson t. Hutchinson, 2 Gamp. 211 ; 6 Esp. 126, s. o. (i) i. e., without the help of the recent statute, post, 366. (y ) Hansard v. Robinson, T B. & C. 90 (14 E. 0. L. R.) ; 9 D. & R. 860, s. c. But see Woodford v. Whiteley, Moo. & M. 51'? (22 E. L. C. R.), and Wain v. Bailey, 10 Ad. & E. 616 (37 E 0. L. R.) ; 2 Per. & Dav. 507, s. 0. ; see Price v. Price, 16 M. k W. 243 ; Ramuz v. Crpwe, 1 Exch. 167. (k) Ramuz v. Crowe, supra. (f) Crowe v. Clay, in error, 9 Bxch. 604. (m) Bevan v. Hill, 2 Camp. 381. (n) Crowe v. Clay, 9 Exch. 604. (1) A recovery cannot be had on a note merely lost and not destroyed, if it had been indorsed before it was lost. Pintard v. Tackington, 10 Johns. 104; Baker T. Dumbolton, Ibid. 240; Rogers v. Miller, 4 Scam. 333. Contra: If the payee bad not indorsed it. Depew v. Wheelan, 6 Blackford, 485 ; Whitesides v. Wallace, 2 Speers, 194; Dean v. Speakman, 7 Blackford, 317; Branch Bank t. Tillmaa,, 12 Alabama, 214. The holder of a negotiable promissory note in an action against the maker is not required to give direct and positive evidence of its destractio% where he has not produced the note on trial, although such note is overdue. It is sufficient if he give such proof as shows that the defendant cannot afterwards be compelled to pay the amount to a hon&flde holder. Swift v. Stephens, 8 Conn, 431. That an action at law may be maintained upon a negotiable bill or note proved to be destroyed, see Rowley v. Ball, 3 Cowen, 303. OF A LOST BILL OE. NOTE. 541 an action can be brouglit on a lost bill, the opinions of the Judges, as they are to be found in the cases, have not been' uniform, and cannot be reconciled to each other. Amid conflicting opinions, the proper course is to revert to the principle of these actions on bills of exchange. The custom of merchants is, that the holder of a bill shall present the instrument, at its maturity, to the acceptor, demand payment of its amount, and, upon the receipt of the money, deliver up the "bill. The acceptor, paying the bill, has a right to the possession of the instrument for his own security, arid for his voucher and discharge pro tanto, in his account with the drawer. As far as regards his voucher and discharge towards the drawer, it will he the same thing whether the instrument has been destroyed or mislaid. With respect to his own security against a demand by another holder, there may be a difference. But how is he to be assured of the fact, either of the loss or destruction of the bill ? Is he to rely upon the assertion of the holder, or to de- fend an action at the peril of costs ? And, if the bill should afterwards appear and a suit be brought against him by another holder, a fact not absolutely improbable in the case of a lost bill, is he to seek for the witnesses to prove the loss, and to prove that the new plaintiff must have obtained it after it became due ? We think the custom of merchants does not authorize us to say that this is the law." And the law is the same though tbe bill had never been indorsed,(o) and whether *the bill be due or not.(p) Where a bill made or become payable to bearer ^ -' is lost, the acceptor, or other party, is not liable, though the bill was lost after a promise to pay by the acceptor. " If," says Lord Tenterden, "upon an offer of the payment, the holder should refuse to deliver up the bill, can it be doubted that the acceptor might retract his. offer, and retain his money ?"(5)(1) (6) Eamuz v. Crowe, 1 Exch. 167. [p) Clay t. Crowe, 9 Exch. 608. (?) Hansard v. Robinson, 7 B. & C. 95 (14 E. 0. L. R.) ; Davis v. Dodd, 4 Taunt. 602. (1) When the existence, amount, and loss of promissory notes are shown, and it does not appear that they were negotiable, the plaintiff is entitled to recover on the lost notes. McNair v. Gilbert, 3 Wendell, 344 ; Pintard v. Tuckington, 10 Johns. 104 ; Hough v. Barton, 20 Vermont, 455. A recovery can be had at law upon a note Jost after it fell due ; if it was lost before due, the- remedy is, it seems, in Chancery, where the owner can be required to indemnify the maker. Thayer v. King, 15 Ohio, 242. If the note is alleged to be lost, the defendant has a right to show that the note was passed by the payee by delivery without assignment. Buston 542 OF A LOST BILL OE NOTE. But, if a bill or note, not negotiable (that is to say, an instrument payable to the payee only, and not to his order or to bearer), be lost, it is conceived(r) that an action will lie either on the bill or on the consideration.(s) The defence that the bill was lost before action brought must, in the superior Courts, be raised by plea, otherwise the plaintiffs may recover by producing the ordinary secondary evidence.(() And a judge has no power to order a stay of proceedings, until an indemnity be given.(M) If a bill be lost after action brought, and the defendant suffer judgment by default, the Court will, on a copy verified by affidavit, refer it to the Master to see what is due. (a;) But if, in such a case, the defendant resists the action, and puts the plaintiff to prove the bill, under the ordinary issues the loss is no excuse for the non- production of it.(^)(l) (r) In America the general rule seems to be that an action will lie on a destroyeS bill though negotiable, and on a lost bill though negotiable if not indorsed. See the American authorities, Byles on Bills, 4th American ed. (s) Wain v. Bailey, 10 Ad. & B. 616 {31 B. C. L. R.) ; Price v. Price, 16 M. & W. 243 ; Ramuz v. Crowe, 1 Bxch. 167 ; Hansard v. Robinson, 7 B. & C. 90 (14 B. 0. , L. R.) i 9 D. & R. 860, s. 0. ; but see Woodford v. Whiteley, Moo. & M. 517 (22 B. C. L. R.) ; Bevan v. Hill, 2 Camp. 381 ; see, howerer, Ramuz v. Crowe,' 1 Bxch. 172 ; Long T. Baile, 2 Camp. 214, n. ; Champion v. Terry, 3 B. & B. 295 (7 E. C. L. R ) ; 7 Moo. 130, s. o. ; Rolt \. Watson, 4 BJng. 273 (13 E. C. L. R.) | 12 Moore, 510, S. 0. (t) Blaokie v. Pidding, 6 C. B. 196 (60 B. 0. L. R.) ; Charnley v. Grnndy, 14 C. B. 608 (78 B. 0. L. R.). (») Aranguren v. Scholfield, 1 H. & N. 494. (x) Brown v. Messiter, 3 M. & Sel. 281; Allen t. Miller, I Dowl. 420; Clarke V. Quince, 3 Dowl 26 ; Plight v. Browne, 2 Tyr. 312. (y) Poole V. Smith, Holt, N. P. 144. See the American authorities, Byles on Bills, 4th American ed. V. Dees, 4 Yeager, 4. A plaintiff cannot give evidence of a lost promissory note, without first proving its loss, so as to repel an inference of fraudulent design in the loss or destruction. Blade v, Noland, 12 Wendell, 173., If. a negotiable . note^ in- dorsed in blank by the payee, be lost by the indorsee, and he afterwards assigns to another the right thereto, the assignee cannot maintain an action at law in his own name upon such lost note. Willis v. Crescy, 5 Shepley, 9. TheijJayeeof a promis- sory note, not under seal, which is lostjmay maintain assumpsit for the amount, but must aver a consideration. Stephens v. Crostwait, 3 Bibb, 222. (1) In an action on a note which is lost, it is not necessary to declare on the note as lost. If such note is lost after the suit is commenced, evidence may be given of OF A LOST BILL OR NOTE. 543 It has been said, that where a man takes half a note, he takes it ■necessarily under suspicious circumstances,(3) and cannot recover to the injury of the maker.' Thus, where the holder sued oa the half of a 51. note, the other half *having been stolen p^„„.-, from the Leeds mail, Lord Ellenborough said, " Payment <- -^ can be enforced at law only by the production of an entire note, or by proof that the instrument,, or the part of it which is wanting, has been actually destroyed. The half of this note taken from the Leeds mail, may have immediately got into the hands of a bond fide holder for value; and he would have had as good a right of suit upon that as the plaintiff has upon this. But the maker of a promissory note cannot be liable, in respect of it, to two parties at the same time."(a) It is doubtful how far the argument, from the liability of the maker on the second half, would be held valid at this day. The holder of the first half has good title and no notice ; the holder of the second half has a bad title and notice. But it may be a question whether a half note be for all purposes a negotiable instrument. (6) If a lost bill or note be in the hands of a party who has no right to retain it, as if, for example, it be still in the possession of the finder, or of a transferee, who has taken it from him under circumstances amounting to fraud, the true owner may bring an action of trover ; or, if it had been paid by the acceptor or maker to such wrongful holder, the amount is recoverable in an action for money had and received. (c) And we have seen that, if the maker or acceptor pay it improperly, the amount will not be allowed him in account with the payee or drawer.((^) But, where no action lies on the lost bill, or on the consideration, (2) Bayley, 6th ed. 379. (a) Mayor t. Johnson, 3 Camp. 324; Massop v. Eaden, 16 Ves. 436. (6) The Bank of England have always been in the habit of paying half notes on an indemnity. And it has been held that the provisions of the Cooimoii Law Pro- cedure Act, 1854, D. 87, apply to the case of half notes. Per Willes, J., at Cham- bers, Redmayne v. Burton, 9 Jur. 21 ; Smith v. Monday, 6 Jur. 977. (c) Down V. Hailing, 4 B. & C. 330 (10 E. C. L. R.) ; 6 D. & Ry. 455 ; 2 C. & P. 11 (12 E. 0. L. E.), s. 0. ; Lovell r. Martin, 4 Taunt. 799. (rf) As to the liability of a party wrongly paying, see ante. Chapter on Payment. its contents. Viles T. Moulton, 11 Vermont, 470 ; Vanawken v. Hornbeck, 2 Green, 178 ; Easton v. Friday, 2 Richardson, 427. 544 OF A LOST BILL OR NOTE. as, where the bill has been indorsed in blank, and where no action can be brought against a wrongful holder, either in trover or assumpsit, the loser was not absolutely without remedy even before the recent statute ; he might then resort to a Court of equity for relief. The 9 & 10 Will. 3, c. 17, s. 3, enacts, that " in case any such inland bill shall happen to be lost or miscarried within the time ' before limited for the payment of the same, then the drawer of the said bill is and shall be obliged to give *another bill of the '- -I same tenor with^;hat first given ; the person to whom it is delivered giving security, if demanded, to the drawer to indemnify' him against all persons whatsoever, in case the said bill, so alleged to be lost or miscarried, shall be found again. "(e) This provision is not peculiar to the law of England, but agree- able to the mercantile law of other countries.(/) Notwithstanding some authorities to the contrary,(^) it is now clearly settled that a Court of common law has no jurisdiction under this statute ; a Court of law it was said not being able to enforce the giving of a new bill, or qualified to judge of the suf- ficiency of ah indemnity.(A) The relief, however, administered by Courts of equity is not confined within the letter of the statute. It will be afforded not only on sueh bills as are mentioned in the statute, but on others ; not only before they are due, but after ; not only on bills but on notes ; not only against the drawer, but against the indorser, or the acceptor ; not only may a new bill be required, but payment.(i) But the Court will not call on a party to renew or pay a lost bill, without providing him with a satisfactory indemnity. (A) Neither (e) The 3 & 4 Anne, c. 9, extends, as it seems, this enactment to promissory ,'; notes. (/) Code de Commerce, Liv. 1, tit. 9, art 151, 152; Ordonnance de Commerce de Louis XIV., tit. 5, art. 19. (g) Walmesley v. Child, 1 Ves. sen. 346 ; Hart v. King, 12 Mod. 309 j Holt, 118, S. 0. (A) Ex parte Greenway, 6 Ves. 812; Davies v. Dodd,.4 Price, 176; Toulmin v. Price, 5 Ves. 238 ; Bromley t. Holland, 7 Ves. 19,, 20, 249. (i) Walmsly v. Child, 1 Ves. sen. 346; Powell ». Monnier, 1 Atk. 611 ; Toulmin V. Price, 5 Vesi 238 ; Ex parte Greenway, 6 Ves. 812 ; Mossop v. Eaden, 16 Ves. 430 ; Hansard V. Robinson, T B. & 0. 90 (14 E. C. L. B.) ; 9 D. & R. 860, s. o. ; Davis T. Dode, 4 Taunt. 602. (ft) Such also is the rule of equity in America. Byles on Bills, 3d American' ed. 431. BILL OR NOTE CONSIDERED AS PAYMENT. 545 will the Court entertain a suit by an intended indorsee against the acceptor where there has been no actual indorsement by the payee, the bill never having become negotiable and being destroyed.(Z) To a suit in equity by the last indorsee of a lost bill against the acceptor, the prior indorsers need not be made parties.(m)(l) And now at law by the 17 & 18 Vict. c. 125, s. 87, in case of any action founded upon a bill of exchange, or other negotiable instrument, the Court or a Judge has power to order " that the loss of such instrument shall not be set up, *provided an indemnity is given, to the satisfaction of the Court or L J Judge, or .a Master, against the claims of any other person upon such negotiable instrument. "(re) Where a debtor remits his creditor a bill or note, by a convey- ance which the creditor directs, or by post, if that be the ordinary vehicle of transmission between them, and the bill or note be lost or stolen, the loss will fall on the party to whom the bill was intended to be remitted.(o) ♦CHAPTER XXIX. [*368] HOW FAR A BILL OR NOTE IS CONSIDERED AS PAYMENT. SUSPENDS THE REUEDY ON A SIMPLE CONTRACT 368 BILL GIVEN AS COLLATERAL SECUEITT 369 FORM OF FLEADINS .... 369 B0T NOT ON A CONTRACT UNDER SEAL 370 DOES NOT SUSPEND DISTRESS . . 370 PAYMENT OP ATTORNEY . . . 370 CONSEQUENCE OF A CREDITOR TAKING BILLS OP A THIRD PERSON . . 370 OP THE creditor's AQENT TAKING THE debtor's BILL .... 371 WHAT A OREDITOB WHO HAS BEEN PAID BY A DISHONORED BILL MUST PROVE 372 {I) Edge T. Bumford, 31 L. J., Oh. 805. (m) Macartney t. Graham, 2 Sim. 285. (n) Bank notes' are within this Act. M'Donnell v. Murray, 9 Ir. Com. Law Bep. 495. And half notes ; per Willes, J., at Chambers, Redmayne v. Burton. (0) Warwick v. Noakes, Peake, 67. (1) In a suit in equity to recover on a lost promissory note, the complainant may be required, by decree of the court, to indemnify the defendant by bond and security against all claims on the note, and may be authorized to recover on com- pliance therewith and on payment of costs. Burrows v. Goodhue, 1 Iowa, 48. 35 546 BILL OK NOTE CONSIDERED AS PAYMENT. WEBBE THE TBANSFEBEB KNEW THE nJSTBDMENT TO BE OP NO TALUE . 3T2 A lOST OB DBSTBOYBD BILL, WHEN PAYMENT 372 PAYMENT BY BANE NOTES OB BILLS OB NOTES PAYABLE TO BEABEB . .372 WHEBE A BILL IS BENEWED . . 3f3 TAEINQ A BILL DETEBMINES A LIEN . 373 BUT NOT ON LAND . . . .374 IS EABNEST 374 Though it be a general rule of law, that one simple contract cannot be satisfied by another similar executory contract,(a) for that is merely substituting one cause of action for another, yet the delivery of a valid bill or note suspends the creditor's remedy for debt, and if he either receive the money on the instrument, or be guilty oi laches, it operates as a complete satisfaction. (5)(1) "The law," says Lord Kenyon, "is clear, that if, in payment of a debt, the creditor is content to take a bill or note payable at a future day, he cannot legally commence an action on his original debt, until such bill or note becomes payable, and default is made in the payment ; but, if a bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer in his hands,' and who, therefore, refuses it, in such case he may consider it as waste paper, and, resort to the ^original demand, and sue L J the debtor on it."(c) The taking a bill or note from the original debtor, or from a third person,( by mistake. Bayley, 6th ed. 30. {}) See%oldsworth v. Hunter, 10 B. & C. 449 (21 E. C. L. R.)., (£) Gelui qui paie une lettre de change sur une deuxi^me, troisi&me, quatriime,; &c., sans retirer celle sur laquelle se trouve son acceptation, n'opdre point sa libe- ration & regard du tiers porteur de son acceptation. Code de Commerce, Art. 148. or SETS, PARTS, AND COPIES OF BILLS. 557 And if an indorser improperly circulate two parts to distinct holders, he may be liable on each.(Z) The forgery of the payee's indorsement on one of the parts will of course pass no interest even to a bond fide holder, (m) It is conceived, that an indorser is not bound to pay any one part, unless every part bearing his indorsement be delivered up to him.(w) Copies of bills are not, it is believed, much used in this country. A protest may be made on the copy of a bill in some cases.(o) But, abroad, when a bill is not drawn in sets, it is sometimes the prac- tice to negotiate a copy, while the original is forwarded to a dis- tance for acceptance. In such, a case, the person who circulates the copy should tran- scribe the body of the bill, and all the indorsements, including his own, literally, and, after all, he should write " Copy : — the original being with such a person." If he should omit to state that the bill is a copy, or to write his own indorsement after the word copy, he may become liable on the copy as on an original. (^) *It is a common but not a safe practice for a drawer, to whom a negotiated part has come back with many in- L -• dorsements on it, to substitute a new part without such indorse- ments. The holder of such a substituted part may be deprived of his remedy against the acceptor by the intermediate act of the drawer.(2) {I) See Holdsworth v. Hunter, supra. (m) Cheap v. Harley, 3 T. E. 127; see Smith v. Mercer, 6 Taunt. 80 (1 E. C. L. E.) ; 1 Marsh. 453, s. 0. ; Fuller v. Smith, 1 C. & P. 197 (12 B. 0. L. E.) ; Ey. & M. 49, B. 0. (ffl) Lorsqu'une deuxiime porte qu'elle ne sera pay^e qu'autant que la premiere ne I'aura pas 6te; I'endosseur qui eudosse les deux exemplaires n'est point respou- sable envers le porteur de la secoade qui a regu ce litre, taudis que la premiere etait fegalement ea circulation. Dans ce cas le porteur de la seconde est averti par les ^nonciations qu'elle con- tient. Pour se mettre k I'abri des fraudes de son c6dant, 11 doit se faire remettre la premiere. Cour de Cassation, 4 Arril, 1832 ; Sirey, t. 32, 1. 29. (o) Dehers v. Harriot, 1 Show. 163. [p) L'usage des copies, quoiqu'il ne soit pas consacre par la loi, n'eu est pas moins valable. L'endosseur qui cree une copie, apr^s avoir negoci6 I'original, est tenu de mentionner dans la copie I'endosseraent qu'il a ecrit sur le titre mgme. Si, au eontraire, apr^s ces mots pour copie, il appose un endos, il fait supposer que I'original n'est pas eadosa^, et il est responsable vis-i-vis du porteur de bonne fol de 1^ copie. Cour Royale de Paris, 14 Janvier, 1830 ; Sirey, t. 30, 1. 172. (q) Ralli y. Dennistoun, 6 Bxoh. 483. 558 OF FOREIGN BILLS AND NOTES. [*379] *CHAPTER XXXI. OF FOREIGN BILLS AND NOTES, WHAT ABE FOBEISN AND WHAT INLAND BILLS 379 STATUTE 19 & 20 VIOT. . . . 379 FBESUMPTION 07 BEINS AN INLAND BILL 380 STAMP ON AN INLAND BILL FUBPCBTIIia TO BE A FOBEISN ONE . , .380 SETS 07 BILLS 380 PRESENTMENT OF FOBEIGN BILLS . 380 ACCEPTANCE OF FOBEION BILLS . . 380 PROTEST 380 Bills of exchange ate either foreign or inland.(a) Inland bills of exchange, at common law, are such as are both drawn and payable' within the limits of England, Wales and Berwick-onr , Tweed.(6) Foreign bills, as distinguished from inland bills at common law, are such as are drawn or payable, or both, abroad, or drawn in one realm of the United Kingdom, and payable in another.(e) Bills drawn in England And payable in Scotland, or Ireland, or vice versd, were until recently foreign bills, for they were so before the union between the countries, and the uniqn does not make them inland bills.((^(l) But bills drawn and payable in Scotland, or drawn and payable in Irelandj were inland bills within 1 & 2 Geo. 4, c. 78, to which an acceptance in writing was necessary, (e) But now, by the 19 & 20 Vict. c. 97, s. 7, bills or notes r*R8ft1 *'^'^*^'^ ^" ^^^ P^^^t ^^^ payable in any other part of the British lBlands(/) are inland bills.(^) (ffl) Holt, 0. J. : "I Iffeinember when actions upon inland bills of exchange did first begin, and tliere they laid a particular, custom between London and Bristdl, and it was an action against the acceptor. The dSfendant's counsel would put them to prove the custom, at which, Hale, who tried it, laughed, and said, they had a hope- ful case on't." Buller v. Crips, 6 Mod. 29 ; 1 Salk. 130 ; Holt, 119, s. o. (A) A bill drawn in England on a, person residing abroad, but drawn and accepted payable in England has been held an inland bill Within the Stamp Act. Amnet V. Clarke, 2 C, M. & R. 468. (c) As to the Isle of MaB and the Channel IslantlB, see Com. Dig. Navigation, 4| 3 and 4. Godfrey v. CoUltttan, 13 Moo. P. C. C. 11. (d) Mahoney v. Ashlin, 2 B. & Ad. 478 (22 B. C. L. R.). (e) Ibid. (/) i. e. Great Britain, Ireland, Man, Guernsey, Jersejr, Alderney, Sark, and the islands adjacent to any of ihem, B. 7. {g) See Appendix. (1) A bill drawn in one of the United States upon a person in another is a foreign bill. Linville v. Welch, 29 Missouri, 203; State Bank v. Hayes, 3 Indiana, 400. OF FOKBIGHT BILLS AND NOTES. 559 A bill of exchange is primd facie an inland bill. When an action is brought on a foreign bill, against a drawer or indorser, the declaration ought to disclose that it is a foreign bill. And if it do not, the defendant "will be entitled to succeed on the ordinary traverses of the material allegations in the declaration. (A) Formerly the acceptor of a bill, purporting to be a foreign bill, but really made in England, and known by the acceptor at the time of acceptance to be so, was not precluded from objecting, in an action by an innocent indorsee, that it was really an inland bill and therefore void for want of a stamp. (i) But there vvas an im- plied warranty by a transferer that a bill apparently drawn abroad really was so drawn.(A;) Now, however, every bill of exchange which shall purport to be drawn at any place out of the United Kingdom, shall for all the purposes of the Stamp Act be deemed a foreign bill, 17 & 18 Vict. c. 83, s. 4,(Z) and may, as we have seen, be stamped accordingly. And by the 27 & 28 Vict. c. 56, s. 2, every bill of exchange payable on demand, and purporting to be indorsed abroad, shall for the purposes of the Stamp Act be deemed to be a foreign bill. Foreign bills are frequently drawn in sets : that is, exemplars or parts of the- bill are made on separate pieces of paper, each part referring to the other parts, and containing a condition that it shall continue payable only so long as the others remain unpaid. For the law on this subject the reader is referred to the preceding Chapter on Sets, Parts and Copies of Bills. As to the presentment of foreign bills for acceptance or pay- ment, see the Chapters on Presentment for Acceptance, and Pre- sentment for Payment. For the English law regulating the acceptance of foreign bills in this country, see the Chapter on Acceptance. As to the protest of foreign bills, see the Chapter on Protest. (A) Armani v. Castrique, 13 M. & W. 443. (t) Steadman t. Duhamel, 1 C. B. 888 (50 B. C. L. R.). (A) Sompertz v. Bartlett, 2 E. & B. 854 (75 B. C. L. R.). if) See Siordet t. Kuczynski, ir 0. B. 251 (84 B. C. L. K.). 560 OF THE EFFECT OF FOBEIGN LAW. [*381] *CHAPTER XXXII. OF THE EFFECT OF FOREIGN LAW RELATING TO BILLS OF EXCHANGE AND PROMISSORY NOTES. OF THE OOMPLIOT OF THE LAWS OP DIFPEBENT OOUNTEIES RELATING TO / BILLS 381 OENEBAL PBINOIPLES OF THE ENGLISH LAW 382 FIVE PEINOIPAL RULES . . . 383 CASES WHERE THE LEX 7,001 CON- TRACTUS GOVERNS . . . 384 FOREIGN ACCEPTANCE . . . 384 FOREIGN INDORSEMENT OF FOREIGN NOTE ...... 384 FOREIGN DISCHARGE .... 384 CASES IN WHICH LEX LOCI SOLUTIONIS GOVERNS 385 FOREIGN INDORSEUENT OP ENGLISH NOTE 385 TIME OF PAYMENT .... 385 PROTEST AND NOTICE OF DISHONOR . 385 ACCEPTANCE 386 BATE OP INTEREST .... 336 KINGDOM A3 TO \ STAMP . IMMORAL, ILLEGAL, AND INJURIOUS CONTRACTS 386 REVENUE LAWS OP OTHER COUNTRIES DISBEQABDED . . . .387 STAMPS ON POBEIGN BILLS . . 387 ON IBISH OB COLONIAL BILLS . . 387 EAiaiNO OBJECTION TO STAMP . . 387 WHAT IS SUCH A MAKING WITHIN THE SUBJECT TO A . 388 PRESUMPTION THAT BILL WAS DRAWN ABROAD 388 APPLICATION OP THE LEX FORI TO FOREIGN BILLS . . . .389 STATUTES OP LIMITATION . SET-OFF ..... POWER OP ABBEST . STATUTE OF FRAUDS PBOTEST AND NOTICE OP DISHONOR PLEADING . . - . BURTHEN OP PROOF . 389 389 389 390 390 390 390 Sometimes bills drawn in England are payable in a foreign country, and bills drawn in a foreign country are payable in Eng- land. Sometimes English bills circulate abroad, and foreign bills circulate here ; and, frequently suits on foreign bills, or bills nego- tiated abroad, are brought in English Courts of justice. The laws of foreign countries, as to bills of exchange, often difiFer widely from the law of England, and from each other. But natural justice, mutual convenience, and the practice of all civilized nations, require that contracts, wherever enforced, should be regu- lated and interpreted according to the laws with reference to which they were made, otherwise the rights and liabilities of par- ties would entirely depend on the law of the country where the *remedy might happen to be sought. Such a state of L -I things would introduce uncertainty and confusion infinitely greater than arises from that measure of respect and comity, which, every tribunal now shows to the law of foreign nations. OP THE EFFECT OF FOREIGN LAW. 561 In determining how far foreign laws are to regulate foreign contracts in English Courts, a great variety of circumstances are often necessary to be considered. It may be essential to regard the domicil of one, or both, or all, of the contracting parties, the place where the contract is made (which place it may not always be easy to determine, for the parties may live in different coun- tries), the place where the contract is to be performed, the place where the subject-matter of the contract is locally situate, and the place where the remedy is sought. Many nice questions, therefore, have already arisen, and many more will, no d^ubt, in future arise in our Courts, from the conflict of English with foreign law, as to bills of exchange. The decisions of English Courts of justice on the international law of contracts have not been very numerous, but nothing can exceed the discrepancy and irreconcilable contrariety of the doc- trines and opinions of foreign writers, not only on the application of; the principles of international law to foreign contracts, but on the very principles themselves. (a) To enter into the discission of such topics would be foreign to the object and exceed the limits of this little book. But in the dearth of authoritative decisions, on the degree to which foreign law is admissible here to govern the contracts arising on bills or notes made, negotiated, or payable abroad, it may not be altogether useless, with a view, as well to the right understand- ing of such decisions as have already been pronounced, as to the solution of such undecided questions on the same subject as may hereafter arise, first to enumerate some of the general principles which seem to have guided the English Courts in determining the circumstances, and the degree, in which they will respect foreign laws, in interpreting contracts either altogether or partially foreign, and then to adduce instances illustrating the application of those principles to the Law of Bills of Exchange. *Among established principles in the law of this country, the five(6) following rules appear to rank. L -*■ (o) See the well known and very learned work on tke Conflict of Laws, tor which, not only his own country and the United Kingdom, but Europe and the civilized world, are deeply indebted to the late Mr. Justice Story. (6) That is to say as to executory contracts and contracts relating to moveables. 36 662 OF THE EFFECT OF FOREIGN LAW. First, every contract is, in general, to be regulated by the laws of the country in which it is. made. For the laws of that country alone are there binding propria vigore on aliens as well as on natural-born citizens or subjects,(e), and the parties to the contract may generally be taken to have contemplated the legal conse- quences which those laws deduce from their stipulations. Hence the formalities essential to the validity of the contract, and the interpretation of that contract, are to be governed by the laws of the country where it is made.(l) But, secondly, where a contract is made in one country to be performed in another, the country where the contract is to be per- formed is deemed the country in which it was made. Such seetna to be the general rule of the civil law. " Oontraxigse unusqukqm in eo loco intelligitur, in quo ut solver et se ohligavit." Some learned civilians have, indeed, entertained a different opinion, but such is unquestionably the general rule in th$ common law of Eng- land. " The law of the place," says Lord Mansfield, " can never be the rule, where the transaction is entered into with the express view to the law of another country, as the rule by which it is to be governed."(rf)(2) But the transfer of real or immoveable property is governed by another rule, the lex rei sitm. See Fenton v. Levington, Dom. Proc. 1859. (c) According to some foreign writers, the domicil of persons entering into eon- tracts, while in a foreign country, is to be considered in those contracts. Difficul- ties thenarise, where the domicil of two" or more of the contracting pE^rties is not the same. The common law does not, it should seem, regard these niceties. Jef- ferys v. Boosey, 4 H. of L. Cases, 814; 24 L. J., Exch. 81. But quaere, how far the domicil of parties to bills of exchange regulates their personal capacity or incapacity to contract. (d) .Robinson v. Bland, 2 Burr. 1077 ; 1 W. Bl. 256, B. o. ; and see Rothschild v. Currie, 1 Q. B. 43 (41 E. C. L. R.) ; see Story's Conflict of Laws, 280 to 281 ; Allen V. Kemble, 6 Moore, P. C. C. 314. (1) Cox V. U. States, 6 Peters, 172; Carnegie v. Morrison, 2 Mete. 381, 397; Bulger V. Uoche, 11 Pick. 36; Bruchett v. Norton, 4 Conn. 517; Sherrill v Hop- kins, 1 Cowen, 103 ; Allen v. "Watson, 2 Hill, S. C. 319; Loan Co. v. Towner, 13 Conn. 249; Watson v. Brewster, 1 Barr, 381; Watson v. Orr, 3 Devereux, 161 ; Martin v. Martin, 1 Smedes & Marsh. 176; Roe v. Jerome, 18 Conn. 138; Palmer V. Yarrington, 1 Ohio State Rep. 253. (2) Smith V. Mead, 3 Conn. 253; Thompson v. Ketcham, 4 Johns. 285; 8 Ibid. 189; Warren V. Lynch, 5 Ibid. 239; Pope v. Nickerson, 3 Story, 465; Goddin v. Shipley, 7 B. Monroe, 575 ; Broadhead v. Noyes, 9 Missouri, 56; Dors^y t. Har- desty, Ibid. 157 ; Sherman v. Gasset, 4 Gilman, 521 ; Tyler v. Trabur, 8 B. Monroe, OE THE EFFECT OF FOREIGN LAW. 563 Thirdly, contracts immoral, or contrary to the law of nations, or injurious to British public interests, though valid where made, will not be enforced on behalf of a guilty party in our Courts. (1) But, fourthly, one country will not regard the revenue laws of another country. *Fiflihly, the remedy is to be governed by the law of the [-^„q.-| country, where that remedy is sought.(2) L ' -' The following are instances of the supremacy of the lex loci contractus according to the first general rule. An acceptance void, or avoided by the law of the country where it is given, is not binding here. By the law of Leghorn, if a bill be accepted, if the drawer then fail, and the acceptor had not sufficient effects of the drawer in his hands at the time of accept- ance, the acceptance becomes void. An acceptor at Leghorn, under these circumstances, instituted a suit at Leghorn, and his acceptance was thereupon vacated. Afterwards, he was sued in England as acceptor, and now filed his bill for an injunction and relief. Lord 306; Hunt v. Standart, 15 Indiana, 33; Blodgett v. Durgin, 32 Vermont, 361; Emanuel T. White, 34 Mississippi, 56; Cribbs t. Adams, 13 Gray, 597; Everett v. Vendryes, 19 New York, 43 ; Brown v. Newell, 3 Kernan, 290 ; Davis t. Clemson, 6 M'Lean,622; Pomeroy T. Ainswortli, 22 Barbour, 118; Hawley v. Sloo, 12 Louisiana Annual, 815 ; Vinson v. Piatt, 21 Georgia, 135 ; Able v. M'Murray, 10 Texas, 350 ;- Gaylord T. Howard, 5 M'Lean, 448 ; Emerson v. Partridge, 1 Williams, 8 ; Barney T. Newcomb, 9 Gushing, 46 ; Thorp v. Craig, 10 Iowa, 461. (1) The laws of foreign countries are not admitted, ex propria vigors, but only ex comilaie; and the judicial power will exercise a discretion with respect to the laws they may be called upon to sanction. If they are manifestly unjust or calculated to injure our own citizens, they ought to be rejected. Tappan v. Poor, 15 Mass. 419; Cambridge v. Lexington, 1 Pick. 506. Upon principles of national comily, a contract made in a foreign place and to be there executed, if valid by the laws of that plape, may be a valid ground of action in the courts of this state, although not valid or even prohibited, by our laws, unless this state or its citizens would be in- jured by giving legal effect to it, or it would be a pernicious and detestable example to them. Greenwood v. Curtis, 6 Mass. 358, 377. (2) Titus V. Hobart, 5 Mason, 378 ; Robinson v. Campbell, 3 Wheaton, 312 ; Blan- chardv. Russel, 13 MasB.a5; Smith v. SpinoUa, 2 Johns. 198; Andrews v. Herriot, 4 Cowen, 508 ; Wood v. Malin, 5 Halstead, 208 ; Ayres v. Auderbon, 2 Hill, S. C. 601: Watson v. Brewster, 1 Barr, 381 ; Givins v. Western Bank, 2 Alabama, 397 ; Smith V. Atwood, 3 McLean, 545 ; McKissick v. McKissick, 6 Humph. 75 ; Wood v. Watkinson, 17 Conn. 500 ; Broadhead v. Noyes, 9 Missouri, 56 ; Dorsey v. Hardesty, Ibid. 157. 664 OF THE EFFECT OF FORBIGK LAW. Chancellor King granted a perpetual injunction, injoining the plaintiff at law from suing on the bill. (e)(1) (c) Burrows T. Jemimo, 2 Stra. T33; Sel. C. 144; 2 Eq. Ab. 526; see "Wynne v. Calendar, 1 Buss. 295. (1) Where a note is made payable generally, the law of the place where it is made must determine the construction to be given to it, and the obligation and duty it imposes. Bank of Orange Co. t. Colby, 1 2 N. Hamp. 520 ; Stacey t. Baker, 1 Scam. 417 ; Eowell v. Buck, 14 Verm. 147 ; Bliss v. Houghton, 13 New Hamp 126 ; Red- dick T. Jones, 6 Iredell, 107 ; Mendenhall t. Gately, 18 Indiana, 149 ; Lawrence v. Bassett, 5 Allen, 140 ; Butler v. Myer, 17 Indiana, 77 ; Thorp v. Craig, 10 Iowa, 461 ; Collins Co. T. Burkam, 10 Michigan, 283 ; Olyphant t. Atwood, 4 Boswortb, 489 ; Stanford v. Pruet, 27 Georgia, 243 ; Miller v. Mayfield, 37 Mississippi, 688; Kelly t. Smith, 1 Metealf, (Ky.), 313; Hawley t. Sloo, 12 Louisiana Annual, 815; Yo,ung V. Harris, 14 B. Monroe, 556. The law of the place where a bill is drawn determines the rights and liabilities of the drawer. Crawford y. Branch Bank, 6 Alabama, 12 ; Hunt t. Standart, IS Indiana, 33 ; Kuensio t. Elvers, 14 Louisiana Annual, 391 ; Wood v. Gibbs, 35 Mis- sissippi, 559 ; Raymond v. Holmes, 11 Texas, 54; Wilson v. Lazier, 11 Grattan, 477. The damages recoverable from the drawer of a foreign bill of exchange which has been dishonored are those allowed by the law of the place where the bill was drawn. Price V. Page, 24 Missouri, 65 ; Page v. Page, Ibid. 595 ; Bouldin v. Page, Ibid. 594. The law of the place where the bill is drawn must govern as to damages and in- terest when recourse is had to the drawee, and the liability of the different indoraers. is to be regulated by the law of the place where they were made. Bailey v. Heald, 17 Texas, 102. A. and B. were a mercantile firm, having business houses both in Cincinnati and New Orleans. C. drew a bill 'of exchange at Cincinnati addressed to "A. and B., New Orleans." It was accepted by B. at Cincinnati for the New Or- leans house, was presented there at maturity and protested for non-payment : held that the drawers were liable for damages prescribed by statute on a bill drawn on a person out of the State. West v. Valley Bank, 6 Ohio, N. S. 168 ; State Bank v. Bodgers, 3 Indiana, 53. A bill drawn in and dated at Philadelphia in blank for the time it should run and for the names of the payee and acceptor was sent to an agent of the drawers in London to be filled up and negotiated, which was done by him. It was held that it was to be presumed that the drawers intended the bill to be re- ceived as having been drawn in Philadelphia at the time of its date, and that the party purchasing the bill in London was to be supposed as having in contempIatioVf the law of Pennsylvania providing indemnity for dishonored bills. Lennig v. Bala- ton, 11 Harris, 137.' A. domiciled here, accepts in Manchester, England, a bill drawn by B. an English merchant, resident there, payable to B. or order in London. B. sues A. here upon the bill. This is a foreign bill as if accepted, payable in London. Grimshaw v. Btnder, 6 Mass. 157. Where a house in New York drew a bill of ex- change on a house in London, which was accepted and paid in London, thereby creating a debt from the drawers to the acceptor, it was held, that London was the place of the contract. Lizardi v. Cohen, 3 Gill, 430. A promissory note made be- tween parties resident in New York, and there negotiated while still current, but paid by the maker before maturity, was afterwards sued in Vermont, in the name of a bonS fide holder for value j held, that the maker could not avail himself of the pay- OF THE EFFECT OF FOREIGN LAW. 565 A bill of exchange was drawn in France, and indorsed in blank in France without following the formalities prescribed by the French law. It was held that the indorsement being void by the French law was void here, for that the contract' and indorsement being made in France must be governed by the law of France.(/)(1) Where the defendant gave the plaintiff, in a foreign country (/) Trimby v. Vignier, 1 Bing. N. C. 151 (27 E. C. L. R.) ; 4 M. & S. 695 ; 6 0. & P. 25 (30 B. 0. L. B.), s. 0. ; but see Wynne v. Jackson, 2 Rusb. 51. ment in defence, although by the law of Vermont, in force at the time of such pay- ment, it would have afforded a good defence to the action. Harrison v. Edwards, 12 Vermont, 648. The law of Mississippi, allowing to the maker of a promissory note, the benefit of all defences against the Indorser which he had against the payee before notice of the indorsement, applies to a suit brought in another state, on a note payable in Mississippi, and indorsed in Mississippi. Brubston v. Gibson, 9 Howard, D. S. 263. Notes were given in New York for a usurious loan, both part- ies being there at the time. When the note became payable, a new contract was made by the parties for an extension of the time of payment, and new notes were made for the amount due, dated in New. York, which were delivered to the lender in the State of Connecticut, where he was then staying, and the old notes were then given up. The notes were not made payable at any particular place. Held, that the new contract was made in Connecticut, and to be governed by its laws as to its nature, validity and effect. Jacks v. Nichols, 5 Barbour, S. C. 38. Where the libel- lants took a promissory note of the owners of a ship in New York for materials there furnished, held, that it was governed by the lex loci, by which the note was only conditional payment. Bark Chusan,'2 Story, 55. The law of a place where a note is payable, determines what is a default by the maker. But the contract of the indorser is regulated by that of the country where the indorsement is made. Hatcher v. McMorine, 4 Devereux, 122 ; Dow v. Russell, 12 N. Hamp. 49 ; Holt v. Salmon, 1 Rice, 91 ; Dunn v. Adams, 1 Alabama, 527 ; Yeatman v. Cullen,"5 Blackford, 240; Lowry's adm. v. Western Bank, 7 Alabama, 120; Holbrook V. Vibbard, 2 Scam. 465; Muason v. Lake, 4 Howard,' U. S. 262; Cox V. Adams, 2 Kelly, 158 ; Dundas v. Bowler, 3 McLean, 397 ; Bank of Illinois V. Brady, Ibid. 268 ; Snow v. Perkins, 2 Michigan, 238 ; Bernard v. Barry, 1 G. Greene, 388 ; Raymond v. Holmes, 11 Texas, 54; Hunt v. Standart, 15 Indiana, 33 ; Rose V. Thames Bank, Ibid. 292 ; Stanford v. P.ruett, 27 Georgia, 243; Everett v. Vendryes, 19 New York, 43 ; Bailey v. Heald, 17 Texas, 102 Where by the law of one state the holder as collateral for pre-existing debt is a holder for value, it is not affected by the fact that the indorsement was made in another state. Ives v. Par- mer's Bank, 2 Allen, 236. (1) The payee of a promissory note, which was executed and made payable in New York, having indorsed it in Indiana, was sued in Indiana, on his indorsement. Held, that the indorsement must be governed by the law of New York ; and that if the diligence necessary by the law of that State to fix the indorsement has been nsed, the defendant was liable. Shanklin v. Cooper, 8 Blackford, 41. An indorser is liable for interest on a bill according to the law of the place on which it is drawn. Mullen V. Morris, 2 Barr, 85. 566 OF THE EFFECT OF FOREIGN LAW. ■where both were resident, a bill of exchange drawn by the defend- ant on a person in England, which bill was afterwards: protested here for non-acceptance, and the defendant afterwards^ while still resident abroad, became bankrupt there, and obtained a certificate of discharge by the law of that state, it was held that such certi- ficate was a bar to an action here, founded upon an implied as- sumpsit to pay the amount of the bill, because the implied contract was made abroad. (^) So payment of part in discharge of the whole of a debt, though ineffectual by the law of England^ will nevertheless bar the whole debt even here, if the payment were made in a foreign country, by the law of which it would have that effect. (A) But a discharge by the law of a place where the contract was _^ neither made nor to be performed, is not a discharge *in L J any other country.(^) Therefore, to an action against the acceptor of an English biH; the discharge of the acceptor under a colonial bankruptcy in Australia is no defence.(y) It is othes- wise in the case of a Scotch bankruptcy, for that operates under a direct enactment of the Imperial legislature.(A) An I D given for money lent in Germany, to play there at games of chance, not illegal in Germany, is valid here.(Z) The following are cases in which the lex loci solutionis has been held to govern. / A promissory note payable to bearer, made and payable in England, is transferable by delivery abroad, although by the law of the country where the delivery takes place, mere delivery; is inoperative. (>w) The time of payment is to be calculated according to the law of {g) Potter v. Brown, 5 East, 124 ; 1 Smith, 351, s. o. (A) Ralli T. Denniatoun, 6 Exch. 483. («■) Story's Conflict pf Laws, s. 342. (y) Bartley t. Hodges, 30 L. J., Q. B. 352. (k) Smitii T. Buchanan, 1 Bast, 6 ; Phillips y. AU^n,' 8 B. & 0. 477 (15 B, C. L. R.). . (I) Quarricr v. Colston, 12 L. J., Chan. 57 ; 1 Ph. 147, s. o. (m) De la Chaumette v. Bank of England, 2 B. & Ad. 385 (22 E. C. L. E.); 9 B. & C. 208 (17 E. C. L. R.). OF THE EFFECT OF FOREIGN LAW. 567 the country where the bill is made payable. («) For ex*ample, the days of grace. The notice of dishonor given and received in a foreign country must be regulated by the law of that country. It has also been held, that not only the protest but the notice of dishonor transmitted from a foreign country must be regulated by the law of the country where the bill is payable.(l) A bill was drawn in England in favor of the defendant, a payee in England, on a house in Paris, and accepted in Paris, payable there, and indorsed to the plaintiff in England. The bill being dishonored by non-payment, notice was given to the plaintiff in England, which notice was good according to the French law, but too late according to the English law. The notice was transmitted the same day by the plaintiff to the defendant. An action was brought in England by the plaintiff, the English indorsee, against the defendant, an English indorser. It was insisted by the defendant that the requisites of the notice, which was received in England, should, as between *the indorsee and indorser both domiciled in England, be regulated by the English law. But the Court L J of Queen's Bench held, that the bill being payable in France was to be considered, even as between the indorsee and indorser, as a French contract, and that the French law, as to the notice of dis- honor transmitted from France to England, must therefore so far prevail.(o)(2) Where a bill is made payable at a particular place either by the {») Beawes, 151 ; Marius, Y5, 89 to 92, 101 to 103 ; Bayley, 6th ed. 249. See ante, Chapter on Presentment for Payment. (0) Rothschild v. Currie, 1 Q. B. 43 (41 B. 0. L. R.), doubted in Gibbs v. Fremont, 22 L. J., Bxch. 5 ; 9 Exch. 31, 3. 0. ; and by Story, p. 197 ; but recently recognized and followed by the Court of Common Pleas in Hirschfield v. Smith, 35 L. J., C. P. \11 ; 1 Law Rep. 340, s. 0. See also Allen T. Eemble, 6 Moore, P. C. C. 314, where it was held that the drawer is liable, according to the law of the country, where the bill is drawn. (1) The evidence, however, is regulated by the lex fori. The certificate of a foreign notary of demand and notice as to a promissory note, though evidence by the law of the place where the note is payable, is not therefore admissible evidence elsewhere. Kitland v. Wanzer, 2 Duer, 277. (2) Ellis V. The Commercial Bank, 7 Howard, Miss. 294. 668 OF THE EFFECT OP FOKBISN LAW. acceptor himself or by the drawer, the law of acceptance prevailing at that place governs the contract of acceptance.(^) But a general acceptance being a contract to paj everywhere, ia governed by the law of the place where it is given, for it is payable there as well as in every other place.(g')(l) A bill was drawn in California, where the rate of interest is twenty-five per cent., on a drawee at Washington, where the rate of interest is only six per cent.; in an English action agaimsl the drawer the Californian rate of interest is recoverable ;(/•) but in an action against the acceptor the Washington rate of interest would alone be recoverable. (s) (2) (p) See the American authorities, Byles on Bills, 4th American ed. (j) Don T. Lipman, 5 CI. & Fin. 1, 12, 13 ; Sprowie v. Legge, 1 B. & 0. 16 (8 K. 0. L. R.) ; 2 D. & E. 15 ; 3 Stark. 156, s. c". ; Kearney t. King, 2 B. & Aid. 301. {r) Gibbs v. Fremont, 9 Exch. 31. (s) See Cooper v. Earl of Waldegrave, 2 Beav. 282 ; Cougan v. Banks, Chitty on Bilis, 683 ; Allen v. Kemble, 6 Moore; P. C. C. 314. (1) The liability of acceptors of a bill of exchange is to be ascertained by the law of the place where the bill is made payable. Frazier v. Warfield, 9 Smedes & Marshall, 220. Where a bill is made payable generally and accepted generally, the place of the address on the face of the bill is the place of payment ; and the law of that place governs the contract of acceptance, although the acceptors reside in a dif- ferent place. Frazier v. Warfield, 9" Smedes & Marshall, 220. Where bills are accepted, payable in London, on a promise to provide funds to meet them, the con- tract is governed by the law of England. Baiubridge v. Wilcocks, 1 Baldwin, 536. A letter of credit from persons in New Orleans addressed to one in Cincinnati, agreeing to accept bills of exchange to be drawn by the latter, is governed by the law of Ohio,~and not by that of Louisiana. Lonsdale v. Lafayette Bank, 18 Ohio, 186. Where the lex loci contractus requires a notice of the non-acceptance of a bill presented before maturity, an omission to notify will not be excused, because, by the law merchant of the place where the bill was presented, notice of non-accept- ance is unnecessary. Allen t. Merchants' Bank, 22 Wendell, 215. Where a bill is •drawn in New York payable in Alabama, which does not contemplate the payment of interest on its face, and interest accrues only in default of payment at maturity, the rate of interest will be governed by the laws of Alabama. But where a loan is made in New York and the interest is there paid on it, and a bill is drawn there payable in Alabama, for the amount of the loan, with interest at a rate usurious in Alabama, the law of New York furnishes the criterion by which it is to be deter- mined whether the contract is usurious. Henrich v. Andrews, 9 Porter, 9. (2) In an action on a note bearing interest according to the laws of another state, if the defendant suffers judgment by default, it is not necessary to impanel a jury to ascertain the legal rate of interest in that state, but the same may be determined by the Court. Willard v. Conduit, 10 Texas, 213. OF THE EFFECT OP FOREIGN LAW. 569 The third rule is, that contracts immoral, or contrary to the law of nations, or injurious to British public interests will not be enforced on behalf of a guilty party in our Courts. The reason is, that the laws of foreign countries are admitted in our Courts, not proprio vigore but ex comitate. The judicial power of every country must reserve to itself a discretion as to the laws it will enforce,(<) otherwise it might in some cases be governed by barbarous and pernicious rules. *The following are instances of the application of the fourth rule, that the English Courts will not regard the ^ -■ revenue laws of other countries. (m) ^ Bills or notes drawn or made in a foreign independent state, or at sea (except those payable to bearer on demand), do not require, in order to their validity in this country,(a;) a stamp of the country where they are made or drawn.(y) " In the time of Lord Mans- field," observes Abbott, C. J.,(s) "it became a maxim, that the Courts of this country will not take notice of the revenue laws of a foreign state. There is no reciprocity between nations in this respect. Foreign states do not take any notice of our Stamp Laws, and why should we be so courteous to them, when they do not give effect to ours? It would be productive of prodigious inconvenience if, in every case in which an instrument was exe- cuted in a foreign country, we were to receive in evidence what the law of that country was, in order to ascertain whether the instrument was or was not valid."(l) But bills drawn in England and payable abroad are, as we have seen, subject to an English stamp. If a bill be drawn in England, on a person abroad, and {t) See the American authorities, Byles on Bills, 4th American ed. (u) See Pellecat v. Angell, 2 C, M. & R. 311. (x) Bat as to the new English stamp on foreign bills; see the Chapter on The (u) Rotoh V. Edie, 6 T. R. 425 ; Boucher v. Lawson, Rep. temp. Hardwicke, 198 ; Holman v. Johnson, Oowp. 343 ; Clugas y. Penaluna, 4 T. Ri 467. («) James t. Catherwood, 3 D. & R. 190 (16 E. 0. L. R.) ; Wynne t. Jackson, 2 Russ. 351 ; but see the note to Story's Conflict of Laws, 2d ed. p. 341 j Bristow v. Seequeville, 19 L. J., Ex. 289 ; 5 Exch. 275, s. 0. (1) Our courts will not require contracts made in Cuba to be stamped according to the Cuban laws. Skinner v. Tinker, 34 Barbour, 333. 570 OF THE EFFECT OF FOREIGN LAW. made payable in England, by both drawer and acoeptor,i it- requires to be stamped as an inland bill. (a) If the bill or note were made in any part of the British empire, it must have the stamp appropriated by the law of the place.,(J) If an unstamped bill tendered in evidence as a foreign bill be really drawn in England, the proper course is for the defendant to object to the admissibility of the bill, and at once to give his evidence on the point, and for the Judge to decide whether it be a foreign or an inland bill.(e) *A question sometimes arises as to what shall be such a L -I making within this country as to subject to the Stamp Laws. The firm of B. & C, in Ireland, had one partner, A., resident in this country, where he also carried on a separate trade. They sent him over four signatures, made by them, on copperplate impressions, as drawers and indorsers, with blanks for dates, sums and drawee's names. He filled them up and used them. It was held, that as the bills were signed in Ireland, they must be considered as made there, and, consequently, that they only required an Irish stamp.( A more speedy mode of proceeding upon bills of exchange and promissory notes than in an ordinary action has been given by the 18 & 19 Vict. c. 67. (A) This statute enacts, that all actions'upon bills of exchange or promissory Botes(Z) *commenced L J within six months(»8) after the same shall have become due and payable, may be prosecuted by a writ of summons in the special form contained in the schedule to the act and indorsed as therein mentioned ;(>i) and it shall be lawful for the plaintiff, on afSdavit bj his initials or a wrong name, or without a Christian name, should not entitle him to a discharge, provided due diligence had been used to obtain a knowl- edge of his true name. {g) Phillips V. Donn, 18 L. J., Q. B. 104 ; 6 D. &i. 521, s. 0. (A) Wheelwright v. Jutting, 1 Taunt. 304 (2 E.,C. L. R.) ; 1 Moore, 51, s. o.| Levy T. Webb, 9 Q. B. 427 (58 B. C. L. R.) ; and see Caswell v. Coare, 2 Taunt. 107 ; and Wilks v. Adcock, 8 T. R. 27 ; Edge v. Frost, 4 D. & R. 243 (16 B. C. L. R), (i) Stratton v Mathews, 18 L. J., Bxch. 5 ; 3 Bxch. 48, s. o. {}) Cunliffe v. Maltaes, 18 L. J., C P. 233 ; 7 C. B. 795 (62 B. 0. L. B.). {k) This useful act was introduced by Mr. Justice Keating. For the general rules relating to the administration of justice under this act, see Reg. Gen. M. T. 1,855, 17 C. B. 1 (84 E. 0. L. R.). (jt) Promissory notes are within the act ; and on a note payable on demand; the six months run from the date. Maltby v. Murrells, 29 L. J., Ezch. 377; 5 H. & N. 813, g. 0. (m) The defendant by acquiescence, may be prevented from objecting that the writ was not issued within the six months. Maltby v. Murrells, 5 H. & N. 813 ; or the writ may be amended and made a specially indorsed writ under the Common Law Proce'dure Act. Leight v. Baker, 2 C. B., N. S. 367 (89 E. C. L. R.). (n) See Regula Generalis, Mich. 1855, Appendix. Hall v. Coates, 25 L. J., Bxch. 3; U Exch. 476, s. 0. ; Robinson v. Cotterell, 11 Bxch. 476. The omission of the name of the maker is an irregularity ; but the Court, on a motion to set aside the writ, will allow it to be amended. Enight v. Pocock, 17 0. B. 177 (84 E. 0. L.B.J; 25 L. J., C. P. 31, 8. 0. OF THE REMEDY BY ACTION ON A BILL. 583 filing an afiSdavit of personal service of such writ within the juris- diction of the Court, or an ordea* for leave to proceed as provided by the Common Law Procedure Act, 1852, and a copy of the writ of summons and indorsement thereon, in case the defendant shall not have obtained leave to appear, and have appeared to such writ according to the exigency thereof, at once to sign final judgment in the form contained in the schedule to the act annexed (on which judgment no proceeding in error shall lie) for any sum not exceed- ing the sum indorsed on the writ, together with interest at the rate specified (if any) to the date of the judgment, and a sum for costs to be fixed by the Masters of the superior Courts, or any three of them, subject to the approval of the Judges thereof, or any eight of them (of which the Lord Chief Justices and the Lord Chief Baron shall be three), unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way, and the plaintiff may upon such judgment issue execution forthwith. A Judge shall,(o) upon application within the period of twelve days from such service, give leave to appear to such writ, and to defend the action, on the defendant paying into Court the sum indorsed on the writ, or upon aflSdavits satisfactory to the Judge, which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Judgemay deem sufficient to support the appli- cation and on such terms as to security or otherwise as to the Judge may seem fit. ^ After judgment, the Court or a Judge may, under special cir- cumstances, set aside the judgment, and, if necessary, stay or set aside execution, and may give leave to appear to the writ,(p) and to defend the action, if it shall appear to be *rea8onable r*oQQ-| to the Court or .Judge so to do, and on such terms as to the Court or Judge may seem just.(»') (o) Sect. 2. - {p) The Court will not set aside the order for leave to appear on mere contra- dictory aflSdavits. Febart v. Stevens, 30 L. J., Exch. 1. (r) Sect. 3. As to the jurisdiction of the Court, see Mather v. Marsland, 27 L. J., Exch. 148 ; Clay v. Turley, 27 L. J., Exch. 2 ; Febart v. Stevens, 30 L. J., Exch. 1 ; Pollock V. Turnock, 1 H. & N. V41. Qumre, whether an executor can be made a defendant under this Act. Per Knight Bruce, L. J., Marriage v. Skiggs, 5 Jnr., N. S. 325 : 28 L. J., Ch..433, s. C; and Leigh v. Baker, (Executrix,) 2 0. B., N. S. 367 (89 E. 0. L. R.). But it is no objection that the holder is an executor. 584 OF THE REMEDY BY ACTION ON A BILL. In any proceedings under the act it is competent to the Court or a Judge to order the bill or note sought to be proceeded upon to be forthwith deposited with an oflScer of the Court, and further, to order that all proceedings shall be stayed until the plaintiff shall have given security for the costs thereof.(8) The expenses for noting for non-acceptance or non-payment may be recovered where they are by law recoverable. (^) One writ of summons may be issued against all or any number of the parties to the bill or note, which shall be the commencemejij; of an action against the parties named therein, and all subsequent proceedings shall be in like manner, so far as may be, as if sepa- rate writs of summons had been i8Sued.(M) A check oii a banker is within the act.(2;) So is a note payable on demand, and the six months run from the date of the note.(y) A count on the consideration of the bill may be included in the declaration. (2) Notwithstanding this act, the provisions of the County Court Acts are applicable to bills of exchange, (a) The plaintiff may lay the venue in any county, and the Court will not change it at the instance, of the defendant, except upon very special grounds.(6) This rule applies to actions on specialties, bills and notes, and not to actions on other written contracts.(c) A banker's check is a bill of exchange within the rule.(c?) Where a special ground is laid for inspection, the Courts r*QQQn *** common law will oblige the plaintiff to allow the defen- dant to inspect the bill or note on which the action is brought.(e) («) Sect. i. {t) Sect. 5. («) Sect. 6. (a;) Eyre v. Waller, 29 L. J., Exch. 246 ; 5 H. & N. 813, s. 0. ; Keene v. Beard, 8 W. R. 469, C. P. , (y) Maltby v. Murrells, 29 L. J., Bich. 377 ; 5 H. & N. 813, s. 0. (2) Reg. Gen. 1858. (ffl) 19 k 20 Vict. c. 108, s. 4. See Harris v. Swinbnrn, 33 L. J., Q. B. 313. (J) Tidd's Practice, 604. (c) Mondel v. Steele, 8 M. & W. 640. (V) Webb V. Inwards, 17 L. J., C. P. 157 ; 5 C. B. 483 (57 E. C. L. E.), s. 0. (e) Threlfall v. Webster, 1 Bing. 161 (8 E. C. L. R.) ; 7 Moo. 559, s. 0. | Tidd, 591 ; Blogg vr.Kent, 6 Bing. 614 (19 E. 0. L. R.) ; 4 Moo. & P. 433, B. 0. See the Chapter on Forgery; and Thomas t. Dunn, 6 M. & G. 274 (46 E. 0. L. R.|) and the provisions of the act relating to the inspection of documents, 14 & 15 Yict. c. 99. OF THE REMEDY BY ACTION ON A BILL. 585 It has been held, that where particulars of the plaintiiF's de- mand are given, and they do not state the consideration paid for the instrument, such particulars will preclude the plaintiff from giving the consideration in evidence, should he fail on the special count. (/) The plaintiff may recover on a bill set out in the declaration, though not mentioned in the particulars, [g) unless the form of the particulars preclude him. Particulars, which state the amount of the common counts to be an amount secured by a promissory note, on which note there is a special count, make it necessary to prove the note, in order to re- cover on the common counts. (A) Particulars are not evidence, they are only an explanation of the declaration or plea.(ii) An indorsement on the writ of summons is now in general sub- stituted for general particulars. A tender, after the bill became due, is no defence by the accep- tor.(y) But a drawer or indorser may, perhaps, tender within a reasonable time after dishonor. (A;) A tender should be unconditional ; the party making it can- not require a receipt as a condition precedent, without invali- dating the tender. But if the tender be Qbjected to by the creditor on other grounds, the requisition of a receipt becomes im- material. (Z) The Courts will sometimes consolidate actions on bills where the parties and the question to be tried in each action are the same.(m) If the holder bring concurrent actions against the acceptor, *the drawer and the indorsers, the Court will stay the pro- r*4QQ-| ceediogs in any one of those actions, on payment of the amount of the bill, and of the costs in that particular action. (/) Wade T. Beasley, 4 Esp. 1. (g) Cooper v. Amos, 2 Oar. & P. 267 (12 B. 0. L. R.). (A) Roberts v. Elsworth, 10 M. & W. 653. (i) Burkett v. Blanchard, 3 Exch. 89. (/) Hume T. Peploe, 8 East, 168 ; Dobie v. Larkin, 10 Exch. 776. (4) Walker t. Barnes, 5 Taunt. 240 (1 E. C. L. B.) ; 1 Marsh. 36, s. 0. See ante. But see Slggers t. Lewis, 1 C, M. & R. 370 ; 2 Dowl. 681, s. o. (I) Cole T. Blake, Peake, N. P. 0. 179 ; Richardson v. Jackson^ 8 M. & W. 298. (m) Booth V. Payne, 11 L. J., Exch. 256 ; and see Sharp v. Lethbridge, 4 M. & Gr. 37 (43 E. 0. L. R.). 686 OF THE REMEDY BY ACTION ON A BILL. But they would not, until recently, have stayed proeeieffiDgs in an action against the acceptor, except upon the terms^ of his payi* the costs in all the other actions, he being the original defaulter.^^ For, though no action lies against the acceptor for these co8t8'j(()) yet when he came to ask a favor, as a stay of proceedings, the Court might with propriety- have put him under terms. Now, however, by a late rule of all the Courts, it is ordered that in any action against the acceptor of a bill or maker of a note, the de- fendant may stay proceedings, on payment of debt and costs in that action only. (p) And where, in an action against the acceptor, an attachment has been obtained against the sheriff for not bringing in the body, the sheriff may be relieved on the payment of the costs of that action only.(g') And before the late rule, if the actions commenced against the other parties were merely collusive, in order to charge the acceptor with a heavier sum for costs, proceedings! against him might have been stayed without payment of those costs. (r) > If the bill or note were obtained by the plaintiff from the de- fendant without consideration, on an affidavit to that effect by the defendant, the Court will stay the proceedings ; but, where there are contradictory affidavits, the Court will not interfere in this sum- mary way, but put the defendant to insist on it as a defence on the trial. (s) Where an indorsement was made on a promissory note by the plaintiff, the payee, that if the interest were paid on stipu- lated days during her life, the note should be given up, the Court refused to stay proceedings on payment of interest and costs.(t) *A plea clearly frivolous on the face of it, or tricky and *- J false, or so framed as to prejudice, embarrass or delay the fair trial of the action, will be set aside.(M) (») Smith T. Woodcock, 4 T. R. 691 ; Windham v. Wither, 1 Str. 515 ; Golding T. Grace, 2 W. Bla. '749. See Lewis v. Dalrymple, 3 Dowl. P. C. 433. (o) Dawson v. Morgan, 9 B. & C. 618 (17 B. C. L. R.). i (p) R. T. T. 1 Vict, and Hil. T. 16 Vict. ; and see Comes T. Taylor, 10 Exch.>441. (S) Rex V. Sheriffs of London, 2 B. & Aid. 192 ; Vaughan v. Harris, 3 M. & W. 542. (»•) Hodson v. Gunn, 2 D. & R. 51 (16 B. 0. L. R.). (») Turner v. Ta;plbr, Tidd's Pr. 9th ed. 530. (i) Steel V. BradEeld, 4 Taunt. 227. («) Horner v. Keppel, 10 Ad. & B, IV (37 E. C. L. R.) ; 3 P. & D. 234, s. o. ; Mit- OF THE RBMEDT BY ACTION ON A BILL. 587 We have already seen that, unless interest be payable by the express words of the instrument, it is in the discretion of the jury to give or withhold it, vr to reduce it below 5 per cent., which is the usual rate given. So where the interest on a foreign bill is governed by the law of a foreign country in which the rate of in- terest is Vigh, the jury may give a much higher rate.(«) Re-exchange is the difference in the value of a bill, occasioned by its being dishonored in a foreign country in which it was pay- able. The existence and amount of it depend on the rate of ex- change beitween the two countries. The theory of the transaction is this. A merchant in London indorses a bill for a certain number of Austrian florins, payable at a future date in Vienna. The holder is entitled to receive in Vienna, on the day of the maturity of the bill, a certain number of Austrian florins. Suppose the bill to be dishonored. The holder is now, by the custom of merchants, enti- tled to immediate and specific redress, by his own act, in this way. He is entitled, being in Vienna, then and there to raise the ■ exact number of Austrian florins, by drawing and negotiating a cross bill, payable at sight, on his indorser in London, for as much Eng- lish money as will purchase in Vienna the exact number of Aus- trian florins, at the rate of exchange on the day of dishonor ; and to include in the amount of that bill the interest and necessary ex- penses of the transaction. This cross bill is called in French the retraite. The amount for which it is drawn is called in low Latin ricambium, in Italian ricamhio, and in French and English re- exchange. If the indorser pay the cross or re-exchange bill, he has fulfilled his engagement of indemnity. If not, the holder of the original bill may sue him on it, and will be entitled to recover in that action the amount of the retraite or cross bill, with the in- terest and expenses thereon. The amount of the verdict will thus be an exact indemnity for the non-payment (^f the Austrian florins in Vienna on the day of the maturity of the original bill. According to English practice, the retraite or re-exchange *bill is now seldom drawn, but the right of the holder to p^ .^o-i draw it is settled by the law merchant of all nations, and ^ -I ford V. Pinden, 8 M. & W. 511 ; Knowles v. Burward, IDA. & E. 19 (37 E. 0. L. R.) ; 2 Per. k Dav. 235, s. o. See the provisions of the Common Law Procedure Act, 15 & 16 Vict. c. 76, s. 52. (») See ante, p. 386. 588 OF THE REMEDY BY ACTION ON A BILL. it is only by a reference to this supposed bill, that the re-exchatjge in other words, the true damages in an action on the original bill can be scientifically understood and, computed. It is plain that whether the indorser gain or lose by the re- exchange depends, (except in so far as relates to the expenses,) on the rate of exchange between the two countries. If the value of the Austrian florin, measured in pounds sterling, has risen, the holder will be entitled to recover more than the original amount of the bill in English money.(a;J But if the value of the Austrian florin has declined, then the indorser may not be liable to repay as much English money as the bill was originally drawn for, unless the interest and expenses cover or exceed the difference. (y) A custom among London merchants that the holder may at his election sue his indorser, either for the sum which the indorser re- ceived of him for* the bill, or for the re-exchange, is inconsisteii with the obligation appearing on the bill when interpreted by the law merchant, and therefore evidence of such a custom is inadmis- sible, (s) The drawer of a bill is liable to the re-exchange, though the bill be returned through ever so many hands. (a) But the acceptor is not liable to the re-exchange. (&)(1) Other damages not necessaarily arising from the dishonor, as noting, postages, &c., are not recoverable unless specially stated in the declaration. (e) But it has been held that postage is in some cases recoverable under the count for money paid.(c?) (x) De Tastet v. Baring, 11 East, 265 ; 2 Gamp. 65, s. o. {y) Suse V. Pompe, 30 L. J., 0. P. 75 ; 8 C. B., N. S. 638 (98 E. 0. L. K.). »• «• («) Ibid. (a) Mellisli t. Simeon, 2 H. Bl. 378. (6) Napier v. Schneider, 12 Bast, 420; Woolsey v. Crawford, 2 Camp. 445. (c) Kendrick v. Lomax, 2 C. & J. 405 ; 2 Tyr. 438, a. o. In which case it was held, that the bill having been renewed, the plaintiff could not recover the charges On the first bill while the second bill suspended the remedy on it. It seems doubtful whether the expense of noting an inland bill, not protested, can at common law in any case be recovered. Ibid. But see the Bills of Exchange Act, 18 & 19 Vict. c. 67, s. 5. See also Eogers v. Hunt, 10 Exch. 474. (d) Dickinson v. Hatfield, 1 M. & Rob. 151; 5 Car. & P. 46 (24 E. G.L. E.)' (1) When a bill is expressed in a foreign currency, the amount due is to be de- termined by the rate of exchange at the time of the demand of payment. In the absence of sijch evidence, the value fixed by the Act of Congress of 27 July, 1862, is conclusive. Butt v. Hoge, 2 Hilton, 81. When a note is made payable at a par- ticular place and is dishonored there, so that the holder is obliged to seek payment OF THE K.BMBDY BY ACTION ON A BILL. 589 When a bill is dishonored, the owner has his option to sue on the bill, or on the consideration. It is advisable to *sue on- the bill ; first, because it reduces the debt to a certainty ; ■- J secondly, because less evidence is necessary ; thirdly, in an action on the bill, proof of payment of the bill lies on the defendant ; but in an action on the consideration only, if defendant show that a bill was given, plaintiffmust prove that the bill was not paid.(e) Of course it is best, where possible, to join a count on the bill with a count on the consideration ;(/) and the plaintiff may take a verdict on both counts. (^f) It would be foreign to the object of this little work to discuss, at length, the jurisdiction and proceedings of Courts of equity in re- lation to actions on bills. The following general observations may nevertheless be made. A Court of equity will, under certain circumstances, restrain an action on a bill. (A) And where the defendant in an action would, if judgment were obtained, be entitled to relief against such judgment on equitable grounds, he may now plead the facts which entitle him to such relief by way of defence. (i) Such a plea is only allowed where final justice can be done by the Court of law in the pending suit. (A:) The defendant, in this case, directed the plaintiff to charge him with it. See the Chapter on Protest. As to nominal damages, see Beaumont v. Greathead, 2 C. B. 495 (52 E. 0. L. R.). («) Hebden v. Hartsink, 4 Esp. 46 ; Bishop v. Rowe, 3 M. & Sel. 362. {/) A count on the consideration may still be joined, R. H. T. 1858. And a count on an account stated in all cases. [g) Vide ante. (A) See Queen of Portugal t. Glynn, ] West, 258 ; Glynn v. Soares, 3 M. & K. 460; Hodgson v. Murray, 2 Sim. 515; Hood v. Ashton, 1 Russ. 412 ; Kidson r. Dil- worth, 5 Price, 564. (i) IV 4; 18 Vict. c. 125, s. 84. ' • ^ (*) Wodehouse t. Farebrother, 25 L. J., Q. B. 18; 5 E. & B. 277 (85 E. C. L. R.), s. 0. ; Wood V. Copper Miners' Company, 17 C. B. 561 (84 B. 0. L. R.) ; Clarke v. Laurie, 26 L. J., Exch. 38 ; Drain v. Harvey, 17 C. B. 257 (84 B. C L. R.) ; but see Chilton V. Carrington, 24 L. J , 0. P. 153. elsewhere, he is entitled to the difference of exchange if there be any. Wood v. Kelso, 3 Casey, 241. Exchange between the place of payment and the place where the recovery is had, cannot be recovered without a special agreement. Chumasero T. Gilbert, 24 Illinois, 651. 590 OF THE BBMBDT BY ACTION ON A BILL. And a defendant having pleaded it, is not precluded from resort- ing to a Court of equity.(i) A plaintiff may, where it is necessary, file a bill of discovery iu aid of an action on a bill, or of an action relating to the proceeds of bills, (m) But now this will seldom, if ever, be necessary, as in all causes in any of the superior Courts a pkintiff may interrogiaS4i': the defendant on oath, upon any matter as to which discovery may be sought, (w) *If the defendant in equity be interrogated as to the '- -' consideration for the bill, he must answer not only as to the consideration given by himself but as to that given by other parties 'to his knowledge.(o) No bill can be filed for discovery, if it charge the defendant with a crime, (p) But the former Gaming Act, 9 Anne, c. 14, s. 3,(g) and the Stock Jobbing Act, 7 Geo. 2, c. 8, s. 2, deprive defendants of this protection in matters to which those Acts related. (r) (l) Evana v. Bremridge, 2 Jur. New Series, 134; 25 L. J., Chan. 334, s. c. But see Terrell v. Higgs, 26 L. J., Ch.. SSY. (m) See Thomas v, Taylor, 3 Y. & 0. 255 ; Wilkiuson T. Leaugler, 2 You. & C- 366 ; or of a defence to an action. («) 17 & 18 Vict. c. 125, a. 51. See Whateley v. Crowter, 5 E. & B. 709 (85 E. 0. L. B.) (o) , Glengall v. Edwards, 2 You. & Col. 125 ; and see Onlverhouae v. Alexander, 2 You. & Col. 218. (j>) Fleming v. St. John, 2 Sim. 181 ; Whitmore v. Francis, 8 Price, 616 ; 2 Sim. 182. But it has been held by the Court of Common Pleas that questions tending to criminate may be put, though they need not be answered. E. T. 1862, sed quaere. (q) Now fepealed by 8 & 9 Vict. c. 109. (r) See Wilkinson v. Leaugler, 2 Y. & 0. 366;' Bullock t. Richardson, 14 Vesey, 378 I Rawlings T. Hall, 1 C. & P. 11 (12 E. C. L. K.) ; Thomas v. Newton, 2 0. & P. 606 (12'E. C. L. B.). PLEADINGS IN Ac'^TIONS ON BILLS AND NOTES. 591 ♦CHAPTER XXXIV. [*405] OF THE PLEADINGS IN ACTIONS ON BILLS AND NOTES. OLD FORMS OF ACTION . 406 DBBT ...... 406 ASSOMPSIT 407 DEOLABATION 407 STATIMENT OF THE PAETIES TO THE INSTBDMENT .... 407 OF CHBISTIAH NAME BY INITIALS . 408 DE3CEIPTI0N OP INSTRUMENT . . 408 STATEMENT OF AOOBPTANOB . . 409 OF PRESENTMENT FOR PAYMENT . 409 OF NOTICE OF DISHONOR . . .'409 OP EXCUSE FOR OMITTINO TO PRESENT FOR PAYMENT, ETC. . . . 409 OF NOTICE OP INDORSEMENT . . 410 OP PROTEST 410 OF MATURITY OF INSTRUMENT . . 410 ALLEGATION OF PROMISE TO PAY . 411 DECLARATION ON A BILL DRAWN IN SETS 412 ASSIGNMENT OF THE BREACH . .412 DAMAGES 412 PLEAS 412 GB«EEAL EFFECT OF NEW RULE . . 412 NGN ASSUMPSIT . . . .412 NIL DEBET 413 GENERAL isSDE BY STATUTE . . 413 TRAVERSE OF ACCEPTANCE . . 413 TRAVERSE OF INDORSEMENT . . 413 ABSENCE OF CONSIDERATION . . 414 THAT PLAINTIFF IS NOT THE HOLDER . 415 PLEA OF PAYMENT .... 415 EFFECT OF PLEADING OVER . . 415 FRAUD 415 PAYMENT 416 SATISFACTION . . . . .416 DUPLICITY OF PLEAS UNDER THE OLD LAW 416 SHAM AND ENSNARING PLEAS . . 418 REPLICATION DB INJURIA SUPERSEDED 418 REPLICATION TO PLEA DENYING CON- SIDERATION 418 PLEADING AN ESTOPPEL . . ,419 DISTRIBUTIVE REPLICATION . . 419 To enter on the subject of pleading and evidence in detail would be foreign to the objects of this work. Many points, both of plead- ing and evidence, have already been discussed in the foregoing Chapters. And the decisions, on the law of pleading in actions on bills of exchange, since the new Rules and the Common Law Pro- cedure Act, have not been sufSciently numerous to remove every obscurity from that branch of the law. These considerations may, perhaps, bespeak the candor of the reader for the deficiencies of the present and the next Chapter. *Two forms of action in the superior Courts were for- merly brought on a bill or note, debt and assumpsit.ia) ^ ■' (a) These observations were written before tlie Common Law Procedure Act : but at present some of them are still material, at least, as showing the law on which the alterations are engrafted. 592 PLEADINGS IN ACTIONS ON BILLS AND NOTES. But debt is at common law of limited application,! and will only lie where there is a privity of contract between the parties. (J) It will, therefore, lie at the suit of the drawer against the acceptor ;(ej by the payee against the drawer of a bill or check,(c?) or maker of a note ;(e) by first indorsee against the drawer of a bill payable to his own order ;(/) and in all cases by indorsee against his immedi- ate indorser.(^) It has been doubted whether an action of debt may not, at the common law, be maintained by the payee against the acceptor, though the payee be not the drawer ;(A) but it is con- ceived that no one but the drawer of a bill payable to his own order could have sued the acceptor in debt.(i) »0n a promissory note payable by instalments, debt will not lie till the last day of payment be past;(y) because the different instalments are considered to constitute but one debt, and for one debt the plaintiff can bring but one action of debt, and cannot split his demand, and vex the debtor with a multitude, of suits. (fc). ; (6) Lewin v. Edwards, 9 M. & W. 720. (c) Priddy v. Henbrey, 1 B. & 0. 6T4 (8 E. C. L. R.) j 3 Dowl. & R. 165. (d) Simpkins t. Potecary, 19 L. J., Bxoh 242 ; 5 Bxch. s. o. (e) Bishop v. Young, 2 B. & P. 18; Hodges v. Steward, Skin. 346; 12 Mod. 36; 1 Salk. 125, s. 0. (/) Stratton v. Hill, 3 Price, 253. Iff) Walking v. Wake, 7 M. & W. 490 ; see Hodges v. Steward, Skin. 346. (K) See a learned note to Chitty on Bills, 9th ed. p. 690. (i) Bishop T. Young, 2 B. & P. 78 ; Cloves v. Williams, 3 Bing. N. 0. 868 (32 K, C. L. R.) ; 5 Scott, 68, s. 0. ; Powell v. Ancell, 3 M. & G. 171 (42 E. 0. L. K). And it was once supposed that it would not lie unless the words '^ value received," or some expression of the consideration appeared on the face of the instrument. Bishop V. Young, 2 B. & P. 78 ; Priddy v. Henbrey, IB. & C. 674 (8 E. 0. L. E.) ; 3 Dowl. & R. 165, B. 0. ; Oresswell v. Crisp, 2 Dowl. P. C. 635 ; 2 0. & M. 634, s. 0. But it is now clear that debt will lie, though the words "value received" be not on the face of the bill. Hatch v. Teayea, and Watson v. Kightley, 11> Ad. & B. 702 (39 E. 0. L. R.); 3 Per. & D. 408, s. 0. (y) Rudder v. Price, 1 H. Bl. 547. (4) Baylye v. Hughes, Cro. Car. 137 ; Pemberton v. Shelton,^ro. Jac. 498; Hunt v. Braines, 4 Mod. 402 ; Hulme v. Sanders, 10 Mod. 69 ; 2 Lev. 4 ; 1 Wms. Saund. 201, a; Olun's case, 10 Rep. 127. But if a note be payable by instalments on the face of it, an action of Assumpsit lies for each instalment. If, however, the note is payable by instalments, but not on the face of it, only one action of assumpsit lies ; and though in such a case a cognovit be taken for the amount of the first instal- ment only, the note is discharged. Siddall v . Rawclifife, 1 C. & M. 487 ; 1 M. & Rob. 263, s. 0. Wager of law is now abolished (3 & 4 Will. 4, c. 42, s. 13), and debt on simple contract now lies against an executor or administrator (3 & 4 Will. 4, c. 42, s. 14). / PLEADINGS IN ACTIONS ON BILLS AND NOTES. 593 *To compensate for these disadvantages, the action oi debt had some recommendations ; and, in the first place, '- -■ the judgment in the first instance was not interlocutory, but final, so that, after judgment by default, the plaintiff need not execute a writ of inquiry, or refer to the Master, to compute principal and interest. Secondly, the Court could not, in any case, dispense with bail, if a writ of error were brought. The forms of declarations given by the Judges are applicable in debt as well as in assumpsit. The action of assumpsit, on account of its universal applicability, ^ , was by far the most usual remedy on a. bill or note. Most of the following observations were applicable alike to the action of debt, and to the action of assumpsit. And now, by the Common Law Procedure Act, the' distinction between forms of action is practically abolished. It will be convenient to exhibit the decisions on points of plead- ing, in the order indicated by the several stages of the pleadings. First, therefore, of the declaration. It was formerly usual to state that the parties to a bill were mer- chants, or persons engaged in commerce, and that the bill was drawn according to the custom of merchants. But such a state* ment, and, indeed, any reference whatever to the custom of mer- chants, which custom is parcel of the common law of the land, is unnecessary, and is now disused. In an action against the acceptor on a bill drawn by a firm, it is a sufficient description of the drawers to say that certain persons under the name, style, and firm of A. & C, made their bill of ■ - exGhange.(Z) A declaration stating that A. B. drew a bill requir- ing defendant to«pay to the drawer's order without again naming him, is good,(w) or to his order, the word his referring to the drawer, (w) (/) Tigar T. Gordon, 9 M. & W. S47. It has been held insufficient to describe the drawers as certain persons using the name, &c. Ball r. Gordon, 9 M. & W. 345; . led queere, see Smith v. Ball, 9 Q. B. 361 (58 E. 0. L. R.), and Bass v. CliTe, 4 Camp. IS; iU. & Sel. is; s. 0. ; Schultz v. Astley, t 0. & P. 99 (32 E. C. L. R.) ; 2 Bing. ^ N. C. 544 (29 E. 0. L. R.), s. c. ; 2 Scott, 815. (m) Knill v. Stockdale, 6 M. & W. il8. (n) Spyer v. Thelwell, 2 0., M. & R. 692 ; 4 Dowl. 509, S. 0. 38 594 PLEADINGS IN ACTIONS ON BILLS AND NOTES. *In all actions on bills or notes, where any of the par- L -I ties are designated on the instrument by the initial letter, or some contraction of the christian name, it is su£Bcient so to describe them in the process and declaration. (o) A single letter, where it is a vowel, may, on special demurrer, be assumed to be a christian name •,{p) but not if a consonant.(g') ,:s>^|f In a declaration by the public oiEcer of a banking copartneEshjifl^ established under the 7 Geo. 4, c. 46, it is sufficient to describe the' plaintiff as a public officer duly appointed.(r) The instrument may be described, either by setting it out in hsec verba,{s) or by stating, its legal effect.(l) If it be drawn in a foreign language, it may be set out in English.(i) It is neither necessary nor safe to aver that the instrument bore date jon a cer- tain day, for such an averment, if incorrect, being matter of de- scription, would be. a variance.(M) The safe and usual mode of declaring is, to allege that A. B. on such a day made his bill ; for (0) 3 & 4 Will. 4, c. 42, s. 12. But it must appear on the count that they are so described in the instrument itself; Levy v. Webb, 9 Q. B. 427, 442 (58 E. 0. L. R.) ; Gatty T. Field, Ibid. ; Esdaile v. M'Clean, 15 M. & W. 21'!, or the declaration was specially demurrable ; Miller v. Hay, 3 Exch. 14 ; Turner v. Fitt, 3 C. B. 701 (54 B. C. L. R.) ; Unless the full christian name could not be discovered : Lomax v. Lan- dells, 6 C. B. 583 (60 E. C. L. R.). But special deninrrers being abolished by the C. L. P. Act, 1852, it is no longer necessary. (p) Lomax v. Landells, 18 L. J., C. P. 88 ; 6 0. B. 583 (60 B. 0. L. R.), a. 0. (q) Kinnersley v. Knott, 7 C. B. 980 (62 E. G. L. R.). " / (r) Spiller v. Johnson, 6 M, & W. 570 ; Christie v. Peart, 7 M. & W. 491. («) Except in cases where that would mislead, as where a bill is drawn payablerf in a foreign currency of the English denomination, but of a different value. Kear- ney V. King, 2 B. & Aid. 301 ; Sprowle v. Legge, 1 B. & 0. 16 (8 B. C. L. B.); 2 D. & Ry. 15, B. 0.; see Taylor v. Booth, 1 C. & P. 286 (12 B. C. L. R.) ; Harrington . V. M'Morris, 5 Taunt. 228 (1 E. C. L. R.) ; 1 Marsh. 33, s. 0. ; Simmonds v. ParminJ' ter, 1 Wils, 185-; 4 Bro. P. C. 604 ; Stevenson v. Oliver, 8 M. & W. 234. (<) Attorney-General v. Valabreque, Wightw. 9. (u) Anon., 2 Camp. 308, n. (1) A note may be declared on according to its legal effect. Thus, in an action by the payee, it is not necessary to set out that it was drawn to order or bearer. Matlack v. Paufoy, 18 Arkansas, 492. It is no variance to declare on a joint and several note as a joint note. Pogue v. Clark, 25 Hlinois, 333. A declaratiott against one of several makers of a joint and several promissory note, need not aver • that the other makers executed the note. Morgan v. Lawrenceburgh Ins. Co., 3 In- diana, 285. The holder of an accommodation note, payable to the order of a third person, but not indorsed by him, may, if he has advanced money on it, declare on it as made to himself or as payable to bearer. Hunt v. Aldrich, 7 Foster, 31. PLEADINGS IN ACTIONS ON BILLS AND NbTBS. 595 the day alleged not then being part of the description of the instru- ment, a making on any day may be proved. Since, however, the recent statutes of amendment, this precaution has become less important. Whether the bill be stated with or without a date, it should be alleged that the bill is overdue. An allegation that it is now over- due, means that it was overdue, not merely at the date of the de- claration, but at the issuing of the writ.(a;) If the bill were not due at the time of action brought, the *objeotion. may be raised under the ordinary traverses of the acceptance, •- -■ drawing or indorsement.(«/) In a declaration on a joint and several promissory note, it is not improper to state, that the makers, jointly or separately, promised to pay. (2) When a bill is made payable at usance, the length of the usance must be stated, (a) Where an instrument has been made payable to husband and wife, and the husband sues upon it alone, it may be stated in the declaration to have, been made payable to the husband. (6) ' A bill drawn upon A. B. and C, may be described as drawn on A. and B.{c) For the proper mode of stating the acceptance of a bill of ex- change in pleading, the reader is referred to the Chapter on Ao- ceptanee. For the proper mode of pleading a presentment for payment, the reader is referred to the Chapter on that subject. The omission to state notice of dishonor is not cured by ver- dict.(d) It was formerly considered doubtful(e) whether such facts as dis- (x) Owen v. Waters, 2 M. & W. 91. [y] Hinton t. Duff, 31 L. J., C. P. 199 ; 11 C. B., N. S. T24 (103 E. C. L. R.), s. c. (z) Rees v. Abbott, Cowp. 832 ; Butler v. Malissy, 1 Stra. 76 ; and see Neale t. Orington, 2 Ld. Baym. 1544. (a) Buckley v.Cambell, 1 Salk. 131; Meggadow v. Holt, 12 Mod. 15; 1 Show. 317, s. 0. (A) Ankerstein v. Clarke, 4 T. R. 616. (c) Evans v. Lewis, 1 Wms. Saund. 291, d ; Mountstephen v. Brooke, 1 B. & Aid. 224; see Wilson v. Red.dall, Gow, 161. {d) Rnshton y. Aspinall, Doug. 654. (e) Cory t. Scott, 3 B. & Aid. 619 (5 E. C. L. R.) ; Bayley on Bills, 5tli ed. 406. 596 PLEADINGS IN ACTIONS ON BILLS AND NOTES. pense with presentment, protest, or notice of dishonor, couldj or could not, be given in evidence in support of the common all'ega*; tions of presentment, protest, or notice in the declaratioii/ It is now, however, clear, that facts dispensing with presentment or no- tice, such as absence of effects in the drawee's hands, or a counter- mand of payment by the drawer, must be specially alleged in the declaration ; and that proof of those facts is inadequate to the sup- port of a positive averment of presentment, protest, or notice. (/)(1). p;^ > ^ Q-| A promise to pay, however, is still admissible under the *com- mon averments as primd facie evidence, that the prelimi- naries essential to the maintenance of the action, such as present- ment and notice, have been satisfied.(^) But if it should distinctly appear in evidence that there has been a neglect to present, and that the defendant, being aware of the omission, afterwards prom- ised to pay, so that the promise is used as a waiver, it is conceived that the declaration must still be special. It rtiay be otherwise, where there has been a neglect to give notice of dishonor in due time, and a promise to pay, with notice of the omission, has been afterwards made before action brought, for then the defendant has, in the words of the declaration, had notice of the dishonor, which notice, under the circumstances, may be deemed as against him due notice. But the law on this subject does not appear to be very clearly settled. (A) It seems, however, that notice, too late in the (/) Burgh V. Legge, 5 M. & W. 418 ; see Terry v. Parker, 6 Ad. & E. 502 (33 E. 0. L. R.) ; 1 N. & P. 752, si c. ; Carter v. Flower, 16 M. & W. 749. But the power of amendment in such oases is liberally exercised. Cordery v. Colville, 3^ L. J., 0. P. 210; 14 C. B., N. S. 724 (78 E. C. L. R.). {g) See Hopley y. Dufresne, 15 East, 275; Lundie v. Robertson, 7 East, 231; 3 Smith, 225, s. c; Hicks v. Duke of iJeaufort, 4 Bing. N. C. 229 (33 B 0. L. R.); 5 Scott, 593, s. 0.; Metcalfe v. Richardson, 110. B. 1011 (73 E. C. L. R.). See the Chapter on Presentment for Payment. (A) See Brownell v. Bonney, 1 Q. B. 39 (41 E. C. L. R.) ; 3 SI. & Ry. 359 ; Dans. (1) Facts which excuse demand and notice may be provert, in an a,ction. against an indorser, under a declaration in the usual form. Kennon v. McRea, 7 Porter, 175 ; Oontra: Curtis v. State Bank, 6 Blackford, 312 ; Windham Bank T. Nortoii,22 Connecticut, 213. In an action against an indorser, proof of a waiver of notice will support an allegation of actual notice. Taunton Bank v. Richardson, 5 Pick. 438. Under an averment of notice, plaintiif may show' what excuses it. Purchase v. Ma/t- tison, 6 Duer, 587. When the facts are such as dispense with an actual demand they must be averred in the declaration. Baunjgardner v. Reeves, 11 Casey, 250. Averment of presentment and non-payment is indispensable in an action against an indorser. Anderson v. Yell, 15 Arkansas, 9. PLEADINGS IN ACTIONS ON BILLS AND NOTES. 597 usual course, but reasonable and sufficient under the special circum- stances, may be proved under the ordinary allegation,(«) It is not necessary to allege a notice to the defendant of the in- dorsement on a bill or note, and if the declaration contain such a statement, it cannot be traversed. (A) As to the mode of pleading a protest, see the former Chapter on Protest and Noting. The forms of declarations on bills of exchange, propounded by the Judges, having been originally settled before the passing of the Uniformity of Process Act, the 2 Will. 4, c. 39, are not now in all cases strictly correct. Before that Act, the plaintiff had a right to treat the declaration as the commencement of the action ; but now the ■writ is fot all purposes the commencement. The declaration, therefore, instead of alleging that the period for which the bill is drawn hath nov/ elapsed, ought at least to allege that it had elapsed at the commencement of the suit.(Q No notice *need be r*r-i-|-i taken of the days of grace, (m) In the form given by the Common Law Procedure Act, 18-52, the words are "now overdue," and they are by a strained construction held to mean at the issuing of the writ. They are part of the description of the bill, and are, therefore, put in issue by a traverse of the acceptance. (w) It was thought, before the recent rules and statute, that it was not absolutely necessary, even in an action of assumpsit by the & L. 151, B. 0. ; Firth v. Thrush, 8 B. & 0. 387 (15 E. C. L. R.) ; Baldwin y. Rich- ardson, 1 B. & C. 245 (8 E. 0. L. R.) ; 2 D. & Ry. 285, s. 0., ante. (x) Carter v. Flower, 16 M. & W. 749. (4) Bradbury v, Bmans, 5 M. & W. 595 ; 7 Dowl. 849, s. o. ; Reynolds t. Davies, 1 B. 4; P. 625. [l) Abbott T. Aslett, 1 M. & W. 209 ; 1 Tyr. & G. 448 ; 4 Dowl. 759, s. o. ; but see Owen T. Waters, 2 M. & W. 91 ; 5 Dowl. 324, s. o. And strictissimo Jure, perhaps even the latter form is not accurate unless it appear from the whole declaration that the bill is due, or unless the period referred to may be considered as including the days of grace. But see Padwick v. Turner, infra. Where the date when the bill will fall due is laid, but not under a videlicet, the mere date has been held sufficient, if by comparison with the date of the writ appearing on record, the action appears not to be premature. Shepherd t. Shepherd, 1 0. B. 849 (50 E. 0. L. R ). (m) Padwick v. Turner, 11 Q. B. 124 (63 E. 0. L. R.). (n) Hinton v. Duff, 11 0. B., N. S. 724(103 E. 0. L. R.). 598 PLEADINGS IN ACTIONS ON BILLS AND NOTES. indorsee against the indofser, to allege in the declaration a promise to pay by the defendant. " The drawing of a bill," says Lord Holt, "is an actual proniise."(o) But the omission of a promise was ground of special demurrer.(p) For otherwise, in a count on a bill of exchange, there would have been nothing to distinguiBh an action of assumpsit from an action of debt.* A declaration. on a promissory note to pay at a certain date, was not double for setting out another promise, after the note is due, to pay on request. (9') A promise to pay, made after the bill is due, should not, in strictness, have been laid as a promise to pay according to the tenor and effect of the bill, but as a promise to pay on request. A promise, however, to pay an overdue bill according to its tenor and effect, was good even on special demurrer.(r') An allegatiOtt' that the defendant promised to pay to the plaintiff, or promisedthe plaintiff to pay, according to the tenor, &c., were either of them sufficient, and amounted to an allegation of a promise to the plain- tiff to pay him.(s) ^ r*41 91 *'^^ *° *^® declaration in an action on a set of bills, see the Chapter on Sets of Bills. The breach by non-payment may be assigned, either in the count on the bill, or at the conclusion of the money counts.(i) It is not necessary to add a count for interest, or to claim inte- rest as special damage. It is recoverable as part of the ordinary and nfecessary damage resulting from non-payment. (0) Starke v. Cheeseman, 1 Salk. 128 ; Carthew, 509 ; 1 Ld. Raym. 538 ; Wager- sloffe V. Keen, 1 Stra. 214 ; Buckler v. Angel, 1 Sid. 246. (p) Griffith V. Roxburgh, 6 Dowl. 133 ; Henry v. Burbldge, 3 Bing. N. 0. 501 (32 B. C. L. R.) I 4 Scott, 296; 5 Dowl. 484, s. 0. ; see Donaldson t. Thompson, 6 M. & W. 316 ; Christie v. Peart, Y M. & W. 491 ; Bayley, 6th ed. ; Stericker t. Barker, 9 M. & W. 321 ; Smith v. Cox, 12 L. J., Bxch. 307 j U M. & W. 475, a. 0. (q) Shepherd v. Shepherd, 1 C. B. 849 (50 E. C. L. R.) ; 3 D. & L. 199, s. 0. (V) Christie y. Peart, 7 M. & W. 491 ; see Hunt v. Massfey, 5 B. & Ad. 902 (27 B. C. L. K.) ; 3 Nev. & M. 109, s. 0. ; Jackson v. Pigott, 1 Ld. Eaym. 364; see Price *. Easton, 4 B. & Ad. 433 (24 E. C. L. R.) ; 1 Nev. & M. 303. («) Bancks v. Camp, 9 Bing. 604 (23 E. C. L. R.) ; 2 M. & Scott, 734, B. 0. | Schild V. Kilpin, 8 M. & W. 673. (t) See Benson v. White, 4 Dowl. 334 ; Turner v. Denman, 4 Tyrw. 313. PLEADINGS IN ACTIONS ON BILLS AND NOTES. 599 As to other and special damage, see the Chapter on the remedy- by Action on a Bill. The New Rules of Oourt(M) direct that in all actions upon bill's of exchange and promissory notes, the plea of non assumpsit, or never indebted, shall be inadmissible.(a;) In such actions, there- fore, a plea in denial must traverse some matter of fact ; ex. gr. the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonor of the bill or note ; and all ipatters in con- fession and avoidance must be specially pleaded, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law on the ground of fraud or otherwise, ex. gr., infancy, coverture, release, payment, perform- ance, illegality of consideration, either by statute or common law, di'awing, indorsing, accepting, &c., bills or notes by way of accom- modation, set-off, mutual credit, and various other defences. (j/) V Therefore, since these rules, if the plea of non assumpsit be pleaded in action on a bill or note, the plaintiff may sign judg- ment.(2) But if the promise laid is not the promise implied by law, the general issue may be pleaded. Thus, if *an ^^ . ^ „-, executor declare on a bill or note payable to his testator laying a promise to himself (the executor), such promise may still be denied by a plea of non assumpsit.(a) Although the "New Rules have abolished the plea of nil debet, it has been held, that if, to a declaration in debt against the ac- ceptor of a bill of exchange, the defendant pleads payment into court of part, and Ihat he is not indebted beyond that sum, and (k) H. T., 16 Vict. 1853, rule 1. (a;) It is nevertheless admissible, in cases where a promise is stated, which would not be the necessary l^gal effect of the bill or note. As, for example, where a' pro- mise by or to an executor is alleged. See Bolleston v. Dixon, 14 L. J., Exch. 304, post; 2 D. &L. 892, S. 0. {y) Equitable defences may now be pleaded, 17 & 18 Vict. c. 125, ss. 83, 85. (a) Keily v. Villebois, 8 Dowl. 136 ; Sewell v. Dale, 8 Dowl. 309. Perhaps a nnlU /woaeyai should be entered on the common counts. Fraser v. Newton, 8 Dowl. 773. The plaintiff cannot, where the plea is also pleaded to the common counts, treat it as a nullity. Eddison T. Pigram, 16 M. & W. 137; and Grout t. Enthoven, 1 Exch. 382. It has been held, that the plea of non assumpsit admits the handtrriting, Neale w. Proctor, 2 Car. & K. 456 (61 B. 0. L. R.). (o) Timmis v. Piatt, 2 M. & W, 720; 5 Dowl. 748, s. c, nom. Gilbert v. Piatt; but see Donaldson v. Thompson, 6 M. & W. 316. 600 PLEADINGS IN ACTIONS ON BILLS AND NOTES. the plaintiff join issue and proceed to trial, it is competent for the defendant to make,. under this plea, any defence applicable to the plea of nil debet, notwithstanding that the plea would formerly have been bad on special demurrer.(5) . The general issue by statute may be pleaded to an action on a bill or note.(c) In an action against partners, on their acceptance to a bill of exchange, a plea stating facts, from which it appears that both partners are not bound, was formerly bad on special demurrer as amounting to an argumentative denial of the acceptance. The proper plea has been held by the Court of Queen's Bench to be a traverse of the acceptance. (cZ) The indorser of a note is not a new maker or drawer' as the in- (lorser of a bill - is. Therefore, where, in an action by indorsee against indorser, the plaintiff declared against the defendant as maker : it was held that the indorsee of a note could not declare against his indorser as maker, even where the latter has indorsed a note not payable or indorsed to him, and where, consequently, his indorsee cannot sue the maker, and that under a plea denying the making of the note, the defendant was entitled to a verdict.(e) But in the case of a bill of exchange it is otherwise. In an action by indorsee against indorser of a bill, the defendant pleaded *that ''he did not make or draw the bill of exchange, as ^ J in the' declaration alleged;" although the plea was bad in form, it was held good in substance, as every indorser of a bill is in law a new drawer, and the plaintiff was not allowed to treat the plea as a nulity, and sign judgment. (^) A plea denying the indorsement of a bill of exchange puts (6) Finleysou v. Mackenzie, 3 Bing. N. C. 824 (32 E. C. L. R.) ; 6 Dowl. P. C. 71 ; 5 Scott, 20, s. 0. (c) Weeks v. Argent, IV L. J., Bxch. 209 ; 16 M. & 'W. 817, s. o. (d) Jones v. Oorbett, 11 L. J., Q. B. 181 ; 2 Q. B. 828 (42 E. 0. L. R.)i s- "-i *"* see Musgrave v. Drake, 5 Q. B. 185 (48 B. C. L. E.) ; see ante, p. 47, and the ob- servations of Mr. Justice Willes on this case in Hogg y. Skein, 34 L. J., C. P. 153. (e) Gwinnel v. Herbert, 5 Ad. & Ell. 436 (31 E. 0. L. R.) ; 6 N. & M. 7^3, S. o., ante. (g) Allen v. Walker, 2 M. & W. 317 ; 5 Dowl. P. C. 460 ; 1 M. & Hurl. 44, 8. o. PLEADINSS IN ACTIONS ON BILLS AND NOTES. 601 in issue, as we have seen, not only the signature, but also such a delivery and transfer as will constitute the indorsee a holder. (A) And/ae,( " If any debtor shall, at the time of adjudication, be liable upon B. L. 194 ; Francis v. Rucker, Ambler, 6t2. In the first and last of these cases, the expenses had been incurred after the act of bankruptcy, and before the commission. {q) Ex parte Wildman, 1 Atk. 109 ; 2 Ves. 113, s. c. ; Ex parte Par, 11 Ves. 65; 1 Rose, 78, s. o. ; Ex parte Tayler, 1 De G. & J. 112 ; 26 L. J., Bank. 58. (r) Cooper v. Pepys, 1 Atk. 106 ; Ex parte Leers, 6 Ves. 644 ; Ex parte The Royal Bank of Scotland, 19 Ves. 3l0 ; Ex parte Worrall, 1 Cox, 309 ; see however, In re I Gibson and Johnson, cited 19 Ves. 311, and Ex parte De Tastet, 1 Rose, 16. (s) Ex parte Henton, De Gex, 550. («) See Ex parte Thornton, 28 L. J., Bank. 4, where double proof was allowed, and it was said that the rule against it is a technical rule not to be extended. («) See the authorities collected in Ex parte Goldsmid, 25 L. J., Bank 25 ; 1 De G, & J. 257, s. 0. TO A BILL OR NOTE. 633 any bill of exchange or promissory note in respect of distinct con- tracts as member of two or more firms carrying on separate and distinct trades, and haying distinct estates to be wound up in bank- ruptcy, or as a sole trader and also as the member of a firm, the dircumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts. "(«) Where a creditor proves a debt, and holds certain bills of ex- change or promissory notes, as securities, if any of them be after- wards paid to him, the amount of such payment must be explunged from the proof, and the future dividends will be paid on the residue Gnly.{w) Where a creditor holds a bill as a security for a smaller sum than the amount of the bill, he may prove against any parties to the bill (except against the party who deposited the bill with him) for the whole amount of the bill, provided he do not receive more than twenty shillings in the pound on the debt due to him from the depositor of the bill, (a;) A holder who has bought up the notes or acceptances of the bankrupt after the bankruptcy will be admitted to prove, (y) pro- vided that, at the time of the bankruptcy, they were in the hands of persons entitled to prove.(s) (») See ante, p. 435, note (p). (w) Ex parte Smith, Cook's B. L. 175, 191 ; Ex parte Barratt, 1 Glyn & J. 327 ; Ex parte Bloxham, Cook's B. L. 176 ; Ex parte Burn, 2 Rose, 55 ; Ex parte Eufford, 1 Gr. & J. 41. See further as to the mode of dealing with bills which have been de- posited as a security, Ex parte Baldwin, 19 Ves. 230; Ex parte Towgood, 19 Ves. 229 ; Ex parte Rush worth, 10 Ves. 419 ; Ex parte Eufford, 1 G. & J. 41 ; Ex parte Brown, 1 G. & J. 407. (x) Ex parte King, Co. B. L. 177 ; Ex parte Croesley, 3 Bro. C. C. 237 ; Co. B. L. lyi, s. 0. ; Ex parte Bloxham, 5 Ves. 499 ; see Ex parte Reader, Buck. 381 ; Ex parte Phillips, 1 M., D. & D. 232. (y) Ex parle Lee, 1 P. Wms. 782 ; Ex parte Atkins, Buck. 479 ; Ex parte Deey, 2 Cov. 423; Ex parte Brymer, Co. B. L. 187 ; Ex parte Thomas, 1 Atk. 73; Joseph v. Orme, 2 N. R. 180 ; Mead v. Braham, 3 M. & Sel. 91 ; Cowley v. Dunlop, i T. R. 665 ; Houle v. Baxter, 4 Bast, 177. (2) Ex parte Rogers, Buck. 490 ; see Ex parte Dickinson, 3 D. & G. 520 ; Ex parte Bolton, 1 M. & Bli. 412. See the Chapter on Transfer. 634 OF THE BANKKUPTCT OF PARTIES *If a trader deny himself to the holder of a bill on the L J morning of the day when it is payable, though the trader pay it the same day, that is an act of bankruptcy. (a) A bill of exchange- is a chattel, the fraudulent transfer of which was an act of bankruptcy within the 6 Geo. 4, c. 16, s. 3,(6) and is so within the 12 & 13 Vict. c. 106, s. 67. A bill of exchange is a good petitioning creditor's debt, though it be not due,(c) and that against the drawer, though, after' the bankruptcy, it be duly presented and paid by the acceptor.(d) In- terest cannot be reckoned, for this purpose, as part of the debt, unless specially made payable on the face of the bill.(e) : T^hqugh a bill be for the exact sum of 501., and not due at the time of the act of bankruptcy, the rebate of interest will not make it an insufficient petitioning creditor's debt.(/) Where there' is a specific exchange of accommodation acceptances, and before the bills are at maturity one of the parties commits an act of bank- ruptcy, it has been held that the bankrupt's acceptance is not a sufficient debt to support a commission until the petitioning creditor has paid his own acceptance. (^) "Where an acceptor, for the accommodation of the bankrupt before an act of bankruptcy, paid the amount after an act of bankruptcy, it was held, that this payment, being after an act of bankruptcy, did not support the commission. (A) A bill or note which cannot be sued on at law,(«) or against law proceedings on which equity will enjoin, is not a good petitioning creditor's deht.(^) (ffl) Colkett T. Freeman 2 T. R. 59 : and see Bleasby v. Crossley, 2 C. & P. 213 (12 B. C. L. B.). (6) Gumming v. Bally, 6 Bing. 363 (19 B. C. L. R.) ; 4 Moo. & P. 36, S. 0. (c) And' so now as to any other debt of sufficient amount, though not due and not secured. 24 & 25 Vict. c. 134, a. 89. '(d) Ex parte Donthat, 4 B. & Aid. 67 (6 B. C. L. B.). But » bill at maturity^ must be presented, and due notice given to the drawer, or it will not constitute a good petitioning preditor's debt against him. Cooper v. Machin, 1 Bing. 426 (8 E. 0. L. R.) ; 8 Moo. 536, s. 0. (e) Cameron v. Smith, 2 B. & Aid. 305 ; In re Burgess, 8 Taunt. 660 (4 B. C. L. B.); 2 Moo. 745; Buck. 412. (/) Brett V. Lovett, 13 East, 213 ; 1 Rose, 112, s. o. (g) Sarratt v. Austin, 4 Taunt. 200; 2 Rose, 112, s. c. (A) Sx parte Holding, 1 G. & J. 97. (j) Richmond v. Heapy, 1 Stark. 202 (2 B. 0. L. R.) ; Buckland v. Newsame, 1 Taunt. 477; 1 Camp.' 474, s. 0. (ft) Bx parte Page, 1 G. & J. 100. TO A BILL OK NOTE. 635 It was at one time doubtful whether, if a bill existing before the act of bankruptcy were indorsed to the petitioning creditor, after the act of bankruptcy, the indorsee would be entitled to a commis- sion.(Z) But it is now clear that *8uch a debt is sufficient. The debt on which the fiat is issued must have existed be- ^ J fore the act of' bankruptcy, but need not have existed in the peti- tioning creditor before it ; the indorsee represents his indorser.(»i) But it must appear that there was a good petitioning creditor's debt in the petitioner at the time of the petition, and therefore it must be shown that the bill or note was indorsed to the petitioner before he petitioned. (w) If, at the time of the act of bankruptcy, a bill given to a creditor were outstanding in the hands of an in- dorsee, neither the original debt due to the creditor, nor the bill, will enable the creditor to support a fiat.(o) When a bill or note is given to the wife dum sola, the husband alone may petition for a commission. (p) The petitioning creditor's debt must in all cases, before the recent act 24 & 25 Vict. c. 134, have been contracted, or must have existed, while the bankrupt was a trader.(g') The date appearing on the bill has been held primd facie evi- dence that it existed before the act of bankruptcy, (r) But when, ■(') Ex parte Lee, 1 P. Wms. 782. (m) Ex parte Thomas, 1 Atk. 73; Anon. 2 Wils. 135; Bingley v. Maddison, 1 Co. B. L. 32 ; Glaister T. Hewer, 7 T. R. 498. Before the year 1806, the petition- ing creditor's debt must have existed before ant/ act of bankruptcy, on the principle that a man who has committed an act of bankruptcy has no power to contract so as to bind his estate. But it was provided by the 46 Geo. 3, c. 135, s. 5, that the commission should not be defeated by an act of bankruptcy prior to the petitioning creditor's debt, of which act of bankruptcy the petitioning creditor had no notice. That statute is repealed by the 6 Geo. 4, c. 16; the 19th section of which latter act, and the 1.2 & 13 Vict. c. 106, s. 88, provides, that no commission shall be invalidated by any act of bankruptcy prior to the petitioning creditor's debt, provided there be a sufficient act of bankruptcy after it. According, therefore, to the latter statute, notice to the petitioning creditor of the prior act of bankruptcy is in many cases immaterial. (n) Rose v. Eowcroft, 4 Camp. 245. (o) Ex parte Botten, 1 Mont. & Bl. 412 ; Ex parte Magnus, 11 L. J., Bank. 32. (p) Ex parte Barber, 1 G & J. 1; M'Neilage v. HoUoway, 1 B. & Aid. 218. ■ (?) Bailie v. Grant, 9 Bing. 121 (23 E. 0. L. R.). (r) See ante. Chapter on Evidence; Goodtitle v. Milburn, 2 M. & W. 853 ; Sinclair V. Baggaley, 4 M. & W. 312 ; Smith v. Battens, 1 Mood, & E. 341 ; Taylor v. Kin- loch, 1 Stark. 175 (2 E. C. L. R.) ; Obbard v. Betham, M. & M. 483 ; Potez t. Glos- sop, 2 Exch. 195 ; Davis v. Lowndes, 7 Scott, N. R. 195 ; Malpas v. Clements, 19 L. J., Q. B. 435. 636 OF THE BANKRUPTCY OP PARTIES in an action by assignees of a bankrupt, they produce a bill or note of the bankrupt, as evidence of a petitioning creditor's debt, they must show by extrinsic evidence that the instrument existed before the act of bankruptcy.(«) *From the date of the drawing ■- -'or making the date of an indorsement cannot be inferred.(t) A course of drawing and ^edra^ying bills of exchange for the sake of the profit, is a trading within the Bankrupt Laws. Thus, where A. was agent for several regiments for the space of six years, and drew bills upon B., who was likewise an agent in Dublin, to the amount of 281,000?. and upwards, and B. redrew to the' amount of 290,000Z. and upwards on A., but there was no com- mission money allowed on either side,' it was -held that a drawing and redrawing such large sums, and a continuation of it, was a trading, though no commission money was allowed on either side, and notwithstanding a loss ensued by these transactions to the bankrupt, (m) But the mere circumstance of drawing, accepting, or indorsing bills, or even an occasional drawing or redrawing, for the sake of profit, will not subject a man to the Bankrupt Laws as a trader, (a;) The Bankrupt Act, 12 & 13 Vict. c. 106, s. 125, enacts, that if at the time of the bankruptcy the bankrupt have by. the consent of the true owner, in his possession, order, or disposition, any goods or chattels whereof he was reputed owner, or whereof he had taken upon himself the sale, alteration, or disposition as owner, the Court shall have power to order them(y) to be sold for the benefit of the creditors. This section applies not only to things in possession but to things in action, as bonds, policies, and other debts.(3) (i) Wright V. Lanison, 2 M. &. W. 739 ; 6 Dowl. 146, s. o. ; and see Anderson v. Weston, 6 Bing. N. 0. 296 (37 B. C. L. R.) ; 8 Scott, .IBS, s. o. ; Fletcher Y. Man- ning, 12 M. & W. 571. (t) Rose T. Rowcroft, 4 Camp. 245 ; Oowie t. Harris, M. & M. 141 (22 E. 0. L. R.). (u) Richardson T. Bradshaw, 1 Atk. 128 ; Hanke^ v. Jones, Cowp. 745 ; 1 Mont. 22 ; and see Inglis v. Grant, 5 T. R. 530, and Ex parte Bell, 15 Veg.. 356. (a;) Hankey v. Jones, Cowp. 745 ; see Hamson v. Harrison, 2 Esp. 555. (y) The alteration in the wording of this section first introduced the necessity of an order. (z) Ryall V. Rolle, 1 Ves. 348 ; 1 Atk. 165, s. o'. TO A BILL OR NOTE. 637 Where a creditor assigns a debt not assignable at law, and, then becomes a bankrupt, the general rule is that the debt so assigned passes nevertheless to the assignees in bankruptcy, as being in the order and disposition of the bankrupt with the consent of the true owner, unless the debtor. have had notice of the assignment. It is, however, sufficient if the assignee of the debt do all he can to give notice, or dispatch a notice, before the bankruptcy, though it be not *received by the debtor till after the bank- r*44o.-i ruptcy.(a) A debt in order to pass to the assignees within this section must have been unconBcientiously allowed to remain in the disposition of the bankrupt.(5) The debtor's knowledge of the assignment is not necessary where a negotiable bill or note is indorsed or transferred, for the legal title to the debt is conveyed by the indorsement or delivery. But if a man, who afterwairds becomes bankrupt, indorses a bill or note not negotiable, unless the debtor have had notice, the bill or note passes to the bankrupt's assignees by reputed ownership. (c) Bills or notes may pass to the assignees under the clause of reputed OTi^nership.(cZ) A person having three bills of exchange, applied to a country banker, with whom he had had no previous dealings, to give for them a bill on London for the same amount ; and the bill given by the banker was afterwards dishonored: — held, that this was a complete exchange of securities, and that trover would not lie for the three bills of exchange ; and that if tfie exehange had not been complete, still that, the banker having become a bankrupt, and the three bills having come to the posses- sion of his assignees, must be considered as goods and chattels in the order and disposition of the bankrupt, at the time of the banh- ruptcy, within the meaning of the Bankrupt Act. " These bills," says Abbott, C. J., "being negotiable securities, of which- the bankrupts might dispose, and having remained in their possession till the time of the bankruptcy, and so come to their assignees, are, in my opinion, within the operation of the statute." It has • (a) Belcher v. Bellamy, 17 L. J., Exch. 219 ; 2 Bxch. 303, a. o. See Brewiu v. Short, 5 E. & B. 227 (85 E. C. L. R.) ; 24 L. J., Q. B. 297, s. c. (6) See Joy v. Campbell, 1 Sch. & Lef. 336, and Load v. Green, 15 M. & W. 216; ■Hamilton v. Bell, 10 Exch. 545. (c) Belcher v. Campbell, 8 Q. B. 1 (55 E. C. L. R.). (ci) 12 & 13 Vict. c. 106, s. 125.. 638 OF THE EANKJRUPTCY OF PARTIES been held that debts are within the statute; if so, d fortiori, bijla of exchange must be.(e) ■ But a bill or note in the hands of an agent for a specific purpose does not pass to his assignees by reputed oyrnership.(/) T*44qi Bills remitted to an agent as a factor or banker, and *en- tered short while unpaid, or paid in generally, for, the amount to be received^^) by such banker, or for any other specific purpose,(A) and not discounted or treated as cash, are considered as still in the possession of the principal; and, therefore, in case of the bankruptcy of such agent, banker , or factor, they do not pass to his assignees, but must be returned to the principal,, subject to such lien as the agent may have upon them. "Every man," says Lord Ellenborough, "who pays bills not due into the hands- of his banker, places them there, as in the hands of his agent to obtain payment of them when due. If the banker discount the bill, or advance money upon the credit of it, that alters the case, he then acquires the entire property in it, or has a lien on it, 'pro tanto, for his advance."(.i) And the law is the same though the amount of the bills be entered by the banker in the cash column, of the ledger and pass- book, and though the banker pay them away or discount them at his discretion. A customer was in the habit of indorsing and paying into his banker's hands bills not due, which, if approved, were immediately entered as bills to his credit, to the full amount : and he was then at liberty to draw for that amount by checks on the bank. The (e) Hornblower v. Proud, 2 B. & Aid. 327. See Bryson v. Wjlie, 1 B. & P. 83, II. As to accommodation bills in the hands of the party for whose accommodation they were accepted, see Wallace v. Hardacre, 1 Camp. 46. (/) Bruce v. Hurly, 1 Stark. 23 (2 E. C. L. E.) ; Belcher y. Campbell, 8 Q. B. 1 " (55 E. C. L. R.) ; see Took t. HoUingworth, 5 T. R. 215. (ff) See Jombart v. "Woollett, 2 M. & C. 389 j Ex parte Edwards, 11 L. J., Bank. 36. (h) Belcher v. Campbell, 8 Q. B. 11 (55 E. C. L. R.). (i) Giles V. Perkins, 9 East, 12 ; see Ex parte Dumas, 1 Atk. 232 ; 2 Ves. sen. 582, s. 0.; Zinck v. Waller, 2 W. Bl. l]54j Bolton v. Puller, 1 B. & P. 539; Ex parte Sargeant, 1 Rose, 153 ; Ex parte Sollers, 18 Ves. 229. s. r. ; Ex parte Pease, 1 Rose, 232 ; Ex parte Wakefield Bank, 1 Rose, 242; Carstairs v. Bates, 3 Camp. 301 ; Ex parte M'Gae, 2 Rose, 376 ; Ex parte The Leeds Bank, 1 Rose, 254; 19 Ves. '25, s. 0. ; Ex parte Rowton, 17 Ves. 426 ; 1 Rose, 15, s. c; Ex parte Buchanan, 1 Rose, 280; 2 Rose, 162; Ex parte Waring, 2 Rose, 1812. TO A BILL OR NOTE. 639 customer was charged with interest upon all cash payments to him, .from the time when made, and upon all payments by bills from the time when they were due and paid, and had credit for interest upon cash paid into the bank from the time of the payment, and upon bills paid in from the time when the amount of them was received. .The bankers paid away such bills to their customers as they thought fit. The bankers having become bankrupts, it was held, that the customer might maintain trover against their assignees for bills paid in by him, and remaining in specie in their hands, the cash balance, independently of the bills, being in favor of the customer at the time of the bankruptcy; Bayley, J., observing, "It has been argued for the defendants, that we must infer an agreement to have been made between the banker and his customer, that, r^^cn-i as soon as *bill8 reached the hands of the banker, the pro- perty should be changed. Undoubtedly, if there were any such bargain, the defendants would be entitled to our judgment; but if there be no such bargain, then the case of customer and banker resembles that of principal and factor; and the bills remaining in the banker's hands in specie, will, notwithstanding the bankruptcy of the banker, continue the property of the customer. Though the amount of the bills was carried into the cash column, it does not follow that the customer assented to their being considered as -cash."(A)- The assignees may be restrained by injunction from negotiating the bills.(Z) The effect of bankruptcy of the husband on the choses in action of his wife has been discussed in a previous Chapter.(m) If the holder of a bill of exchange, in which he has a beneficial interest, become bankrupt, the property in the bill vests, from the time of the act of bankruptcy,(w) in his assignees, and they must indorse, (o) But as, in general, property, in which a bankrup-t has no bene- (A) Thompson v. Giles, 2 B. & C. 422 (9 B. 0. L. E.) ; 3 Dowl. & B. 733, a. o. ; Ex parte Barkworth, 27 L. J., Bank. 5. {1} Ex parte Jombart, Cor. Vice.C, Deo. 1836. (m) Chapter v. , («) Subject of course to the new provisions as to notice of the aet of bankruptcy. (o) Pinkerton v. Marshall, 2 H. Bl. 335; Thomason t. Frere, 10 East, 418; but see now 2 & 3 Vict. c. 29, and 12 & 13 Vict. c. 106, a. 133. 640 OF THE BANKRUPTCY OF PARTIES jicial interest, does not pass to his assignees: he may, after an act of bankruptcy, indorse a bill accepted for his accommodation, so as to convey to his indorsee a right of action against the accom!- modation acceptor, (p) But, if the money were received by the creditor before the com- mission issued, then an indorsement by the bankrupt would, under the late General \Bankrupt Act, have been protected as a payment by the bankrupt.(g') "There is no difference," says the Lord Chancellor, "h^tween an actual payment of money in satisfaction of a debt, and indorsing bills of exchange, provided the money was received on them before the commission of bankruptcy issued; for I should take that only as a medium of payment, and no more; r*4.'in *otherwise it would be very hard."(r) And it has been held, that if a bill of exchange be indorsed in payment of goods sold, it will be a payment within the statute, though the bill be not paid till after the issuing of the commission, provided it be paid when due.(8) The distinction between a payment in money and a payment or satisfaction by bills, is, however, at this day, of little moment, since now not only payments, but all contracts, dealings and transactions without notice of an act of bankruptcy, are pro- tected.(i) Where a negotiable instrument is given to the bankrupt after his bankruptcy, the bankrupt has the property in it, unless the as- signees choose to interfere. (m) If a bankrupt be payee of a negotiable bill or note, the acceptor or maker cannot dispute his capacity to indorse.(a;) {p) Arden T. Watkins, 3 East, 31t; Wallace v.^ardacre, 1 Gamp. 45 ; Eamsbot- tom T. Oator, 1 Stark. 228. (?) 6 Geo. 4, c. 16, s. 82 ; and also under 2 & 3 Vict. o. 29, and 12 & 13 Vict. c. 106, s. 133. [t) Hawkins t. Penfold, 2 Ves. Sen. 550. («) Wilkins t. Casey, 7 T. R. Til ; Bayly v. Schofield, IM. & Sel. 338^ j see Bishop V. Crawsbay, 3 B. & 0. 415 (10 E. C. L. R.) ; 5 Dowl. & R. 279. {t) 12 & 13 Vict. c. 106, s. 133, (a) Drayton v. Dale, 2 B. & 0. 293 (9 B. 0. L. R.) ; 3 Dowl. & R. 534. {x) Drayton v. Dale, 2 B. & C. 293 (9 E. 0. L. E.) ; Pitt v. Chappelow, 8 M. & W. 616; Braithwaite v. Gardiner, 8 Q. B. 473 (55 E. C. L. R.). See the Chapter on Acceptance. TO A BILL OB NOTE. ^ 641 The certificate or order of discharge of the bankrupt discharges him from all debts ' due when he became bankrupt, and from all claims and demands provable under the bankruptcy. (y) And an agreement to pay a debt from which the bankrupt has been so dis- charged, was formerly void, unless in writing and signed, (a) But an absolute written and signed promise personally to pay, bound, whether given before or after certificate, (a) But now a subsequent contract to pay is avoided. (5) Until the 6 Geo. 4, c. 16, s. 3, fraudulent preference (except by deed) was not prohibited by any statute, but was void as a fraud on the Bankrupt .Laws.(c) If by deed, it was an act of bank- ruptcy; (t?) ' But now, by the 6 Geo. 4, c. 16, s. 3, r.epealed and re-enacted by the l2 & 13 Vict. c. 106, s. 67, every fraudulent conveyance or transfer, whether of real property or chattels, *(though not rijc^con by deed) is erected into an act of bankruptcy. And a bill of exchange has been decided to be a chattel within this, as well as within.other sections of the Bankrupt Act.(e) To be invalid as a fraudulent preference, a transfer or payment must have been spontaneous, and not at the instance or importu- nity of the creditor ;(/) it must have been with the intention of giving the creditor an unfair advantage, and not in the usual course of business ;(^) it must have been in contemplation of bankruptcy as a probable event.(A) is) 12 & 13 Vict. c. 106, s. 200. (z) 6 Geo. 4, c. 16, s. 131. (a) Kirkpatrick v. Tattersall, 13 M. & W. 766; Lobb v. Stanley, 5 Q. B. 51i (48 E. C. L. R.). (6) 24 & 25 Vict. c. 134, e. 164. (c) Martin v. Pewtress, 4 Burr. 2477. {d) 1 Jac. 1, c. 15, s. 2 ; Bevan v. Nnnn, 9 Bing. 107 (23 E. C. L. E.) ; 2 Moo. & Sc. 132. (e) CummiDg v. Bailey, 6 Bing. 363 (19 B. C. L. R.) ; 4 Moore & P. 36, s. c. Qucere as to a country bank note. Carr T. Burdiss, 1 C, M. & R. 782 ; 5 Tyrw. 309, s. c. See post. (/) Mogg V. Baker, 4 M. & W. 348; Brown v. Kempton, 19 L. J., C. P. 169 ■ Strachan v. Barton, 25 L. J., Bxch. 182. (g) Rustv. Cooper, Cowp. 629. (A) Poland v. Glynn, 4 Bing. 22, n. (13 E. 0. L. B.) ; 12 Moo. 109, n., s. c. In Morgan v. Brundrett, 5 B. & Ad, 289 (27 E. 0. L. R.) ; 2 Nev. & M. 280, s. c, Mr. Justice Parke said that the cases on this subject had gone too far, and that actual bankruptcy and not mere insolvency must have been contemplated to make the pre- ference fraudulent. And see Atkinson t. Brindall, 2 Bing. N. C. 225 (29 E. C. L. R.) ; 2 Scott, 369, s. 0. But see Aldred v. Constable, 4 Q. B. 674 (45 E. C. L. R.). 41 642 OF THE BANKRUPTCY OF PAETIBS But money is not, perhaps, a chattel within the statute, and therefore the payment of money, by way of fraudulent preference to a creditor, may b^ only a void payment, (i) t A voluntary transfer, without consideration, by a bankrupt, being at the time insolvent, of land, chattels, bills, bonds or notes or debts, is avoided by the 12 & 13 Vict, c, 106, s. 126. A gift of money is not, it seems, within this section •,{j) but if the money were given with a fraudulent intent, the payment is void and the money recoverable. The existing law relating to the discharge fi-om their debts and engagements of insolvent debtors, whether traders or not, now depends on the enactments of the statute 24 & 25 Vict. c. lM.[k) But as that Act of Parliament does aflfect rights which have arisen under the repealed acts,(Z) it will still be necessary to con- sider them vgry briefly; *The principal acts recently in force for the relief of L *^^J insolvent debtors were the 1 & 2 Vict. c. 110, amended by the 2 & 3 Vict. c. 39.(m) The last general act for this purpose, before the 1 & 2 Vict. c. 110, was the 7 Geo. 4, c, 67, most' of the provisions in which act were re-enacted by the 1 & 2 Vict. c. 110, without alteration, so that the decisions on the earlier statutes are, for the most part, applicable to the later one.(w) (i) Bevan v. Nunn, 9 Bing. 107 (23 E. C. L. R.) ; 2 Moore & S. 132, s. c; Abell T. Daniell, M. & M. 370 (22 E. C. L. R.) ; but see Ex parte Simpson, 1 De Gex, 9 ; also Canaan t. Wood, 2 M. & W. 467. If A. and B. are both creditors for the same debt, a payment to A., with the intention of serving B., is not a fraudulent prefer- ence of A. Abbott V. Pomfret, 1 Bing. N. C. 462 (27 E. C. L. R.) ; 1 Scott, 470 ; 1 Hodges, 24, s. c; see Reg. v. Radley, 18 L. J., M. 0. 184. (y) Kensington v. Chantler, 2 M. & S. 36 ; Ex parte Shortland, 7 Ves. 88 : Ex parte Sharratt, 2 Rose, 384; Abell v. Daniell, M. & M. 370 (22 E. 0. L. K.). (k) Sects. 93 to 106. (l) Sect. 230. (ra) Bj the 10 & 1 1 Vict. c. 102, jurisdiction in matters of insolvency was transferred from the Court of Bankruptcy to the Court for the Relief of Insolvent Debtors ; and the jurisdiction of both Courts was in cases of insolvency, more than twenty miles from London, vested in the County Court judges. (n) ■ The 5 & 6 Vict. c. 116, effected a most important alteration in the law, enact- ing that any person, not being a trader, and any trader owing less than 8002., might petition the Court of Bankruptcy for protection from process, although he had not TO A BILL OR NOTE. 643 The object of the act 1 & 2 Vict. c. 110, was to discharge the iBSolyent's person from all his debts on bills or notes mentioned in his schedule, whether the persons to whom those debts may have become due be named in the schedule or not, provided there was no fraudulent or intentional misdescription or concealment. The act,(o) therefore, expressly discharges the insolvent from the claims of all .persons not known to him at the time of the adju- dication, who may be indorsers or holders of any negotiable security set forth in the schedule. Under the Lords' Act, 32 Geo. 2, c. 28, now repealed by 1 & 2 Vict. c. 110, f. 119,(p) it was held that, where the indorsee of a bill sued the acceptor, and charged him in execution, and the acceptor obtained his discharge under the Lords' Act, and the indorsee then sued the drawer, who, after paying the bill, sued the acceptor and charged him in execution again, that the acceptor was not discharged, because the first execution was not a satisfaction as between the drawer and acceptor.(g') This decision, however, *proceeded on the limited scope of the Lords' Act, which only proposed tp discharge a prisoner from gaol, as to a ■- -I particular pressing creditor, and not like the acts for the relief of the insolvent debtor, to discharge him from all his debts and liabil- ities. Therefore, a discharge by the Court for the Relief of Insolv- ent Debtors has a much more extensive effect. An insolvent inserted in his schedule the name of the indorsee, but not of the drawer of the bill and was discharged ; afterwards the drawer took up the bill and sued the insolvent, who pleaded his discharge. It was held that the defendant was discharged. (?•) It is conceived that a debtor discharged by the Court for the Relief of Insolvent Debtors, from a bill which is at maturity, is discharged, not only been to prison. The act was amended by the 7 & 8 Vict. c. 96, and the 12 & 13 Vict. c. 106, which enabled an insolvent trader to petition for protection, ss. 211 to 223. See as to the 7 & 8 Vict. c. 96, the case of Phillips v. Pickford, 19 L. J. 171 ; and as to the 12 & 13 Viot. c. 106, ss. 211 and 216; Levy v. Home, 19 L. J., Bxch. 260 ; 5 Exch. 257, s. 0. | Alcard v. Wesson, 7 Exch. 753 ; 8 Bxch. 260, in error. (o) 1 & 2 Vict. c. 110, s. 75. See Litton v. Dalton, T. T. 1864, C. P. {p) The repeal of a repealing statute does not revive the statute first repealed, 13 & 14 Vict. c. 21, a. 6. (j) M'Donald v. Bovington, 4 T. R. 825 ; and see the decisions on 49 Geo. 3, e. 115j Lucas V. Wintoa, 2 Camp. 443; Simpson v. Pogson, 3 Dow. & R. 567 (16 B. C. L. R.). [r) Boydyll v. Champneys, 2 M. & W. 433. 644 OF THE BANKRUPTCY OF PARTIES as against the holder at the time of his schedule, but as against all subsequent transferees, and all parties who may take up the bill.(»-) Where there are two joint makers of a promissory note, the one a principal and the other a surety, and the principal has been dis- charged by the Court for the Relief of Insolvent Debtors, and the surety is obliged to pay the note, the surety may sue the principal,; notwithstanding his discbarge.(«) •, The debt must have been properly described in the schedule.(t) If the bill be substanDially described in the schedule, an unin- tentional mistake or defect in the description, either of the bill or of the parties to it, will not prejudice the insolvent.(M) But if the insolvent wilfully omit the name of an indorsee or holder, known by the insplvent to be so, he is not dischargedt(a;) If the debt only be mentioned in the schedule, the debtor is not discharged from the bill. The bill or note should be mentioned, . and the name of the holder also, or else it should *be L -■ stated that the holder is not known to the insolvent.(y) But if the name be in fact not known, it is enough to mention the. bill.(a) And if by mistake the debt be stated to be 51. when it should be 11., &s the consequence is to deprive the creditor of the benefit of {r) Boydyll v. Cliampneys, 2 M. & W. 433. ' (s) Powell V. Eason, 8 Bing. 23 (21 E-. 0. L. R.) ; 1 M. & Sco. 68, s. o. (0 1 & 2 Vict. c. 110, as. 69 and 93 ; Franklin v. Beesley, 28 L. J., Q. B. 161. («) Formau v. Drew, 4 B. & C. 15 (10 E. 0. L. E.) ; 6 D. & R. 75, 8. o. ; Wood v. Jowett, 4 B. & 0. 20, n. (10 E. C. L. R.) ; RcOTes T. Lambert, Ibid. 214 ; Nias T. Nicholson, R. & M. 322; 2 C. & P. 120 (12 E. C. L. R.), s. c; Levy v. Dolbell, M. & M. 202 (22 B. C. L. R.) ; Boydell \. Champneys, 2 M. & W. 433 ; Eastwood t. Brown, R. & M. 312 ; Cox v. Read, Ibid. 199 ; 1 C. & P. 602 (12 B. 0. L. E.), 3. o.j Sharp V. Gye, 4 0. & P. 311 (19 E. 0. L. R.) ; Symons v. May, 6 Exch. 101 ; Romel- lio f. Halaghan, 30 L. J., Exch. 231 ; 1 B. & S. 219 (101 E. C. L. E.). But see Tinney v. Cecil, 26 L. J., C. P. 53 ; Reeves v. Mackay, C. P., Mich. 1861. {x) Pugh V. Hookh^m, 5 C. & P. 376 (24 B. C. L. R.) ; Lewis v. Mason, 4 C. & P. 322 (19 B. C.-L. R.). (y) Beck v. Bererly, 11 M. & W. 845; Tyers v. Stunt, 1 Scott, 349 ; Leonard v. Baker, 15 M. & W. 202 ; Chambers v. Smith, 11 C. B. 358 (73 B. C. L. R.); Kemp v. Murry, 11 Exch. 47 ; Symonds v. May, 6 Exch. 707 ; Romelio v. Hallaghau, 1 B. & S. 279 (101 E. 0, L. R.). (z) Booth V. Goldman, 28 L. J., Q. B. 137 ; 1 E. & B. 414 (102 E. C. L. R.), s. o. TO A BILL OR NOTE. 645 the notice to creditors for 51. and upwards, the debtor is not dis- charged.(a) A notice to the creditor of the filing of the insolvent's petition and schedule, was not a condition precedent to his discharge, for the notice was the act of the Court. (6) ■ ' A discharge by the Court for the Relief of Insolvent Debtors, • though it discharge the person of the insolvent from liability, is no discharge of other parties to the bill, except to the amount of the sum received by the holder from the insolvent's estate. •'/'■' The act 1 & 2 Vict. e. 110, s. 91, avoids any new contract or security for payment of a debt from which the insolvent has been discharged under the act ; therefore, a bill or note for a debt from which the insolvent has obtained his discharge, is, as to that debt, void, and void notwithstanding that the bill or note was made on some additional and good consideration. (c) But it has been held that an innocent indorsee, for value without notice, before maturity of the instrument, may, notwithstanding, recover on such a note.{d) And a bill accepted partly for a debt, from which the acceptor has been discharged by the Insolvent Debtors' Act, and partly for a new debt, is good as to the new debt.(e) ^ *A bill or note given in consideration of not opposing an insolvent's discharge, or of withdrawing opposition to L ^ (a) Hoyles t. Blore, 14 M. & W. 38T. The expressioa " debts growing due," only applies to debts already ascertained, though payable at a future day; Skelton t. Watt, 2 Exch. 231. (J) Reid v. Croft, 5 Bing. N. 0. 68 (35 E. C. L. R.) ; 6 Scott, 770 ; T Dowl. 122, S. 0. (c) Evans v. "Williams, 1 0. & M. 30 ; 3 Tyr. 226, s. c; Ashley v. Killick, 5 M. & W. 509 ; and see Kernot v. Pittis, 2 E. & B. 421 (75 E. C. L. R.). (d) Northam v. Latouche, 4 C. & P. 140 (19 E. 0. L. R.); Lucas y. Winton, 2 Camp. 443 ; Simpson v. Pogson, 3 Dow. & R. 567 (16 E. 0. L. R.). As to a war- rant of attorney, see Philpot v. Aslett, 1 0., M. & R. 85 ; Best v. Barber, 8 Price, 533 j 3 Doug. 188 (26 E. C. L. B.), s. 0. (e) Sheerman t. Thompson, 11 Ad. & B. 1027 (39 E. C. L. R.) ; 3 Per. & Dav. 656, 3. 0. ; Denne v. Knott, 7 M. & Wl 143, where one of several defendants has been discharged under the act; and see Eaynesv. Jones, 9 M. & W. 104. 646 OF THE BANKRUPTCY OF PARTIES. it, is void, except in the hands of an innocent indorsee for value.(/) The effect of the vesting order was to vest in the provisional assignee all bills and notes belonging to the insolvent, and the in- solvent could not indorse them, but if the petition were dismisself or if the detaining creditor assented to the discharge of the insol- vent before adjudication, it was held by the Court of Queen's Bench, that the property in such bills and notes in the hands of the insolvent revested at once in him, and his ability to indorse re- turned.(^) But the Court of Exchequer Chamber afterwards held that the property did not so revest. (A) (/) Murray v. Reeves, 8 B. & 0. 421 (15 B. 0. L. R-l ; 2 M. & Ey. 423, s. o.j Rogers v. Kingston, 2 Bing. 441 (9 E. 0. L. R.) ; 10 Moore, 97, s. c. ; Horn v. Ion, 4 B. & Ad. 78 (24 B. 0. L. R.) ; 1 N.^& M. 627, s. o. ; Hall v. Dyaon, 21 L. J., Q. B. 224 ; 17 Q. B. 785 (79 B. 0. L. R.),'s. o. ; Hills v. Mitson, 8 Bxch. 751. {g) Grange v. Trukett, 21 L. J., Q. B. 26; 2 E. & B. 395 (75 E. C. L. R.). (A) Kernot v. Pittis, 2 Ad. & E. 406 and 421 (20 E. C. L. E.). APPENDIX. *SECTION I. [*457] NOTAKY'S PEES OF OFFICE. , As settled July 1st, 1799. At a meeting of several notaries of the City of London, held at the George and Vulture Tavern, in London aforesaid, on the 1st of July, a.d. 1797, the following resolutions were unanimously agreed to, and since approved and confirmed by the Governor and Company of the Bank of England : — First. — That, from and after the fifth day of the present month of July, the noting of all bills drawn upon or addressed at the house of any person or persons residing within the ancient walls of the said city of London, shall be charged one shilling and sixpence ; and without the said walls, and not exceeding the limits hereunder specified, the sum of two shillings aid sixpence. Second. — For all bills drawn upon, or addressed at, the house of any person or persons residing beyond Old or New Bond Street, Wimpole Street, New Cavendish- Street, Upper Marylebone Street, Howland Street, Lower Gower Street, lower end of Gray's Inn Lane (and not off the pave- ment), Clerkenwell Church, Old Street, Shoreditch Church, Brick Lane, St. George's in the Ea.st, Execution Dock, Wapping, Dockhead, upper end of Bermondsey Street (as far as the church), end ofBlackman Street, end of Great Surrey Street, Blackfriars Koad (as far as the Circus), Cuper'fe Bridge, Bridge Street, Westminster, Arlington Street, Piccadilly, and the like distances, three shillings and sixpence ; and, off the pavement, one shilling and sixpence per mile additional. Third. — For protesting a bill drawn upon, or addressed at, the house of any person or persons residing within the ancient walls of the said city (including the stamp duty of four shillings, and exclusive of the charge of noting), the sum of six shillings and sixpence : and without the ancient 648 APPENDIX. walls of the said city, including the like stamp duty, and exclusive of the said charge of noting, the sum of eight shillings, agreeably to the second article. Fourth. — That all acts of honour, within the ancient walls of the city bf London, shall be charged the said sum of one shilling and sixpence upon each bill : and for all acts of honour without th« ancient walls of the said j-^. -„-. city, to be regulated agreeably to the *charge of noting bills out '- -'of the city, and the like charge for any additional demand that may be made upon the said bill, or when the same is mentioned and in- serted in the answer in the protest. Fifth. — For evert/ post, demand, and act thereof, within the ancient walls of the said city, the sum of two shillings and sixpence; and without the walls of the said city, the sum of three shillings and sixpence (pro- vided the same be only registered in the notary's book); and so in propor- tion, according to the distance, to be regulated agreeably to the charge of noting bills. Sixth. — For every copy of bill paid in part, and a receipt at foot of such copy, shall be charged two shillings ; and so in proportion for every addi- tional bill so copied (exclusive of the receipt stamp). Seventh. — For every duplicate protest of one bill (including four shil- lings for the duty), shall be charged the sum of seven shillings and six- pence, and so in like proportion of three shillings and sixpence (exclusive ■ of the duty), for every additional bill.- Eighth. — For every folio of ninety words, translated from the French, Dutch, or Flemish, into English, or from the English into French, Dutch, or Flemish, two shillings for each such folio ; and from Italian, Spanish, Portuguese, German, Danish, and Swedish, one shilling and ninepence per folio of ninety words; and from Latin, two shillings and sixpence per folio; and for attesting the same to be a true translation, if necessary, seven shillings and sixpence, exclusive of fees and stamps. Ninth. — ^That all attestations to letters of attorney, affidavits, &c., at the request of any gentleman in the law, shall be charged seven shillings and sixpence, exclusive of fees, stamps, and attendance. Tenth. — For every city seal shall be charged one guinea, for one depo- nent, exclusive of attendance, and exemplification; and if more than one deponent, ten shillings and sixpence for each additional afiSdavit. Eleventh. — For all notarial copies shall be charged sixpence per folio of seventy-two words, exclusive of attestation, stamps, &c. APPENDIX. 649 SECTION IL STATUTES. [9 & 10 Will. 3, c. 17.] An Act for the better Payment of Inland Bills of Exchange. "Whereas great damages and other inconveniences do frequently happen in the course of trade and commerce, by reason of delays of payment, and other neglects on inland bills of exchange in this kingdom :" Be it there- fore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and the commons, in this present Parliament assembled, and by the authority of the same, r*itnQi that from and *after the four-and-twentieth day of June next, •- -' which stall be in the year one thousand six hundred and nijiety-eight, all and every bill or bills of exchange drawn in, or dated at or from, any trading city, or town, or any other place in the kingdom of England, dominion of Wales, or town of 'Berwick-upon-Tweed, of the sum of five pounds sterling or upwards, upon any person or persons of or in London, or any other trading city, town, or any other place (in which said bill or bills of exchange shall be acknowledged and expressed the said value to be received), and is and shall be drawn payable at a certain number of days, weeks, or months after date thereof, that from and after presentation and acceptance of the said bill or bills of exchange (which acceptance shall be by the underwriting the same under the party's hand so accepting), ■ and after the expiration of three days after the said bill or bills shall become due, the party to whom the said. bill or bills are made payable, his servant, agent, or assigns, may and shall cause the said bill or bills to be protested by a notary public, and in default of such notary public, by any other substantial person of the city, town, or place, in the presence of two or more credible witnesses, refusal or neglect being first made of due pay- ment of the same : which protest shall be made and written under a fair written copy of the said bill of exchange, in the words or form following : Know all men, that I, A. B., on the day of at the usual place of abode of the said have demanded pay- ment of the bill, of the which the above is the copy, which the said did not pay, wherefore I the said do hereby protest ■ the said bill. Dated this day of n. Which protest so made as aforesaid shall, within fourteen days after 650 APPENDIX. making thereof, be sent, or otherwise due notice shall be given thereof, to the party from whom the said bill or bills were received, who is, upon producing such protest, to repay the said bill or bills, together with all interest and charges from the day such bill or bills were protested ; for which protest shall be paid a sum not exceeding the sum of sixpence ; and in default or neglect of such protest made and sent, or due notice given within the days before limited, the person so failing or neglecting thereof is and shall be liable to all costs, damages, and interest, which, do and shall accrue thereby. III. Provided nevertheless, that in case any such inland bill or bills of exchange shall happen to be lost or miscarried within the time before limited for payment of the' same, then the drawer of the said bill or bills is and shall be obliged to give another bill or bills of the same tenor with those ;first given, the person or persons to whom they are and shall be so delivered, giving security, if demanded, to the said drawer, to indemnify him against all j)ersons whatsoever, in case the said bill or bills of ex- change so alleged to be lost or miscarried, shall be found again. [*460] *[3 & 4 Anne, o. 9> s. 1.] An Act for giving lilee Remedy upon Eromissory Notes as is now vse^i ,. upon Bills of Exchange, and for the better Payment of Inland Bills of Exchange. " Whereas it hath been held, that notes in writing, signed by the party who makes the same, whereby such party promises to pay unto any other person, or his order, any sum of money therein mentioned, are not assign- able or inddrsable over, within the custom of merchants, to any other person, and that such person to whom the sum of money mentioned in such note is payable cannot maintaih an action, by the custom of mer- chants, against the person who first made and signed the same; and that any person to whom such note should be assigned, signed, indorsed or made payable, could not, within the said custom of merchants, maintain any action upon such note, against the person who first drew and signed the same :" therefore, to the intent to encourage trade and commerce, which will be much advanced if such notes shall have the same effect as inland bills of exchange, and shall be negotiated' in like manner, be it enacted by the. queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this pre- sent parliament assembled, and by the authority of the same. That all notes in writing that, after the first day of May, in the year of our Lord one thousand seven hundred and five, shall be made and signed-by any APPENDIX. 651 pera.on or persons, body politic or corporate, or by the servant or agent of any corporation, banker, goldsmith, merchant or trader, who is usually intrusted by him, her or them, to sign such promissory notes for him, her or them, whereby such person or persons, body politic and corporate, his, her or their servant or agent, as aforesaid, doth or shall promise to pay to any other person or persons, body politic and corporate, his, her or their order, or unto bearer, any sum of money mentioned in such note, shall be taken and construed to be, by virtue thereof, due and payable to any such person or persons, body politic and corporate, to whom the same is made payable, and also every such note payable to any person or persons, body politic and corporate, his, her or their order, shall be assignable or in- dorsable over in the same manner as inland bills of exchange are or may be, according to the custom of merchants; and that the person or persons, body politic and corporate, to whom such sum of money is or shall be, by such note, made payable, shall and may maintain an action for the same, in such manner as he, she or they might do upon an inland bill of ex- change, made or drawn according to the custom of merchants, against the person ot persons, body politic and corporate, who, or whose servant or agent, as aforesaid, signed the same ; and that any person or persons, body politic and corporate, to whom such note that is payable to any person or persons, body politic and corporate, his, her or their order, is indorsed or assigned, or the money therein mentioned ordered to be paid, by indorse- ment thereon, shall and may maintain his, her or their action for such sum of money, either against the person or persons, body politic and cor- porate, who, or *whose servant or agent, as aforesaid, signed such pj,. /,-,-, note, or against any of the persons that indorse the same, in like L -I manner as in cases of inland bills of exchange. And, in every such action, the plaintiff or plaintiffs £hall recover his, her, or their damages and costs of suit; and, if such plaintiff or plaintiffs shall be non-suited, or a verdict be given against him, her, or them, the defendant or the defendants shall recover his, her, or their costs against the plaintiff or plaintiffs ; and every such plaintiff or plaintiffs, defendant or defendants, respectively, recovering may sue out execution for such damages and costs, by capias, fieri faciai, or elegit. [17 Geo. 3, c. 30, ss. 1, 2, 4, made perpetual by 27 Geo. 8, e. 16.] An Act fmr further restraining the Negotiation of Promissory Notes and Inland JBills of Exchange, under a limited Sum, within that part of Gfreat Britain called England. " Whereas, by a certain act of parliament, passed in the fifteenth year of his present majesty, (intituled ' An Act to restrain the Negotiation of 652 APPENDIX. Prbmissory Notes and Inland Bills of Exchange, under a limited Sum, within that part of Great Britain called England,') all negotiable promis' sory or other notes, bills of exchange or drafts, or undertakings in writing, for any sum of money less than the sum of twenty shillings in the whole, issued after the twenty-fourth day of June, one thousand seven hundred and seventy-five, were made void, and the publishing or uttering and nego- tiating of any such notes, bills, drafts or undertakings for a less sum than twenty shillings, or on which less than that sum should be due, was by the said act restrained, under certain penalties or forfeitures therein men- tioned ; and all such notes, bills of exchange, drafts or undertakings} in writing, as had issued before the said twenty-fourth day of June, were made payable upon demand, and were directed to be recovered in such manner as is therein also mentioned ; and whereas the said act hath been attended with very salutary effects, and, in case the provisions therein con- tained were extended to a further sum (but yet without prejudice to the convenience arising to the public from' the negotiation of promissory notes and inland bills Of exchange, for the remittance of money in discharge of any balance of account or other debt), the good purposes of the said-act would be further advanced :" Be it therefore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that all promissory or other notes, bills of exchange or drafts, or undertakings in writing, being negotiable or trans- ferable, for the payment of twenty shillings, or any sum of money above that sum, and less than five pounds, or on which twenty shillings or above that sum, and less than five pounds shall remain undischarged, and which shall be issued within that part of Grreat Britain called England,, at any time after the first day of January, one thousand seven hundred and r*/i«on *seventy- eight, shall specify the names and places of abode of the '- -* persons respectively to whom, or to whose order, the same shall be made payable ; and shall bear date before or at the time of drawing or issuing thereof, and not on any day subsequent thereto; and shall be made payable within the space of twenty-one days next after the day of the date thereof : and shall not be transferable or negotiable after the time thereby limited for payment thereof; and that every indorsement to be made thereon shall be made before the expiratioA of that time, and to bear date at or not before the time of making thereof; and shall specify the name and place of abode of the person or persons to whom, or to whose order, the money contained in every such note, bill, draft or undertaking is to be paid ; and that the signing of every such note,- bill^ draft or under- taking, and also of every such indorsement, shall be attested by one sub- scribing witness at least; and which said notes, bills of exchange or drafts, APPENDIX. 653 or undertakings in writing, may be made or drawn in words to the purport or effect as set out in the schedule hereunto annexed, Nos. I. and II. ; and that all promissory or other notes, bills of exchange or drafts, or under- takings in writing, being . negotiable or transferable, for the payment of twenty shilllings, or any sum of money above that sum, and less than five pounds, or in which twenty shillings, or above that sum, and less than five pounds, shall remain undischarged, and which shall be issued within that part of Great Britain called England, at any time after the said first day of January, one thousand seven hundred and seventy-eight, in any other manner than aforesaid; and also every indorsement on any such note, bill, draft or undertaking to be negotiated undre this act, other than as aforesaid, shall and the same are hereby declared to be absolutely void ; any law, statute, usage or custom to the contrary thereof in anywise notwith- standing. II. And be it further enacted, by the authority aforesaid, that the pub- lishing, uttering or negotiating within that part of Great Britain called England, of any promissory or other note, bill of exchange, draft or under- taking in writing, being negotiable or transferable for twenty shillings or above that sum, and less than five pounds, or on which twenty shillings or above that sum, and less than five pounds, shall remain undischarged, and issued or made in any other manner than notes, bills, drafts or undertakings, hereby permitted to be published or negotiated as aforesaid ; and also the negotiating of any such last-mentioned notes, bills, drafts or undertakings after the time appointed for payment thereof, or before that time, in any other manner than as aforesaid, by any act, contrivance or means whatso- ever, from and after the said first day of January, one thousand seven hundred and seventy-eight, shall be, and the same is hereby declared to 'be, prohibited or restrained, under the like penalties or forfeitures, and to be recovered and applied in like manner as by the said act is directed, with respect to the uttering or publishing or negotiating -of notes, bills of exchange, drafts or undertakings in writing, for any sum of money *not less than the sum of twenty shillings, or on which less than r:^Aon-i that sum should be due. '- -^ IV. And be it further enacted, by the authority aforesaid, that the said former, and also this present act, shall continue in force, not only for the residue of the term of five years in the said former act mentioned, and from thence to the end of the then next session of parliament, but also for the, further term of five years, and from thence to the end of the then next session of parliament. 654 APPENDIX. Schedule, No I. • [^place] [dai/] [montK] [^earJ] Twenty-one days after date I promise to pay to A. B., of [pZoce] , or his order, the sum of for value received by Witness, E. F. C. D. And the Indorsement, toties quoties. [dai/] [montJi] [j/ear.J . Pay the contents to G. H., of [jalace'], or his order. Witness, J. K. A. B. No. ii. [place'] [da^l [month'] [year,] Twenty-one days after date pay to A. B., of [place] , or his order, the sum of , value received, as advised by To E. E., of [^lace] Witness, G. H. C. D. And the Indorsement, toties quoties. [day] [month'] [yeari] Pay the contents to J- K., of [place], or his order. Witness, L. M. A. B. [48 Geo. 3, c. 88, ss. 1, 2, 3, 4.J An Act to restrain the Negotiation of Promissory Notes and Inland Bills of Exchange under a Idmited Sum in England. ^' Whereas various notes, bills of exchange and drafts for money for very small sums, have for some time past been eirculated or negotiated in lieu of cash, within that part of Great Britain called England, to the great prejudice of trade and public credit, and many of such bills and drafts being payable under certain terms and restrictions, which the poorer sort of manufacturers, artificers, laborers, and othei:s, cannot comply with other- wise than by being subject to great extortion and abuse : and whereas an act, passed in the fifteenth year of the reign of his present Majesty, inti- tuled ' An Act to restrain the Negotiation of Promissory Notes and Inland Bills of Exchange, under a Limited Sum, within that part of Great Britain r*4.fiQ-| liable to any of the duties imposed by this act, with the date ^ -' printed therein ; and if any banker or bankers, or other person or persons, shall issue, or cause to be issued, any such promissory note, with the date printed therein, he or they shall, for every promissory note so issued, for- feit the sum of fifty pounds. XIX. And be it further enacted, that all promissory notes hereby allowed to continue re-issuable for a limited period, but not afterwards, shall upon the payment thereof, at any time after the expiration of such period, and all promissory notes, bills of exchange, drafts or orders for money, not hereby allowed to be re-issued, shall, upon any payment thereof, be deemed and taken respectively to be thereupon wholly discharged, va- cated and satisfied, and shall be no longer negotiable or available in any manner whatsoever, but shall be forthwith cancelled by the person or per- sons paying the same ; and if any person or persons shall re-issue, or cause or permit to be re-issued, any promissory note hereby allowed to be re- issued for a limited period, as aforesaid, at any time after the expiration of the term or period allowed for that purpose; or if any person or per- sons shall re-issue, or cause or permit to be re-issued, any promissory note, bill of exchange, draft or order for money, not hereby allowed to be re- issued at any time after the payment thereof; or if any person or persons paying or causing to be paid any such note, bill, draft or order as aforesaid, shall refuse or neglect to cancel the same, according to the directions of this act, then, and in either of those cases, the person or persons so offend- ing shall, for every such note, bill, draft or order as aforesaid, forfeit the sum of fifty pounds ; and in case of any sueb note, bill, draft or order being re-issued contrary to the intent and meaning of this act, the person or persons re-issuing the same, or causing or permitting the same to be re-issued, shall also be answerable and accountable to his Majesty, his heirs and successors, for a further duty in respect of every such note, bill, draft or order, of such and the same amount as would have been chargeable thereon in case the same had been then issued for the first time, and so 660 APPENDIX. from time to time as often as the same shall be so re-issued, which further duty shall and may be sued for and recovered accordingly as a debt to his Majesty, his heirs and successors; and if any person or persons shall re- ceive or take any such note, bill, draft or order in payment of, or as a security for, the sum therein expressed, knowing the same to be re-isSuef contrary to the intent and meaning of this act, he, she or they shall, for every such note, bill or draft or order, forfeit the sum of twenty pounds. XX. And be it further enacted, that all promissory notes and bank post bills which shall be issued by the governor and company of the Bank of England, from and after the said thirty-first day of August, one thousani eight hundred and fifteen, shall be freed and exempted from all the duties hereby granted J and that it shall be lawful for the said governor' and r*A(iQ-\ company to re-issue *any of their notes, after payment thereof, as *- -^ often as they shall think fit. XXI. And be it further enacted, that the composition payable by the said governor and company of the Bank of England for the stamp duties on their promissory notes and bank post bills, under the aforesaid act of the forty-eighth year of his Majesty's reign, shall cease from the fifth day of April last; and that the said governor and company shall deliver to the said commissioners of stamps, within one calendar month aftet the passing of this act, and afterwards on the first day of May in every year whilst the present stamp duties shall remain in force, a just and true^account, verified by the oath of their chief accountant, of the amount or value of all their promissory notes and bank post bills in circulation, on some given day in every week, for the space of three years preceding the sixth day of April, in the year in which the account shall be delivered, together with the average amount or value thereof, according to such account; and that the said governor and company shall pay into the hands of the receiver-geftg^g of the stamp duties in Great Britain, as a composition for the duties which would otherwise have been payable for their promissory notes and bank post bills issued within the year, reckoning from the fifth day of April preceding the delivery of the said account, the sum of three thousand five hundred pounds for every million, and after that rate for half a million, but not for a less sum than half a million, of the said average amount or value of their said notes and bank post bills in circulation; and that one- half part of the sum so to be ascertained as aforesaid for each year's com- position shall be paid on the first day of October, and the other half on the. first day of April next after the delivery of such account as aforesaid. XXII. Provided always, and be it further enacted, that upon the said governor and company resuming their payments in cash, a new arrange^ APPENDIX. 661 ment for the composition for the stamp duties, payable on their promissory notes and bank post bills, shall be submitted to parliament. XXIII. And be it further enacted, that from and after the thirty-first day of August, one thousand eight hundred and fifteen, it shall be lawful for the governor and company of the Bank of Scotland, and the Eoyal Bank of Scotland, and the British Linen Company in Scotland, respectively, to issue their promissory notes for the sums of one pound, one guinea, two pounds and two guineas, payable to the bearer on demand, on unstamped paper, in the same manner as they were authorized to do by' the aforesaid act of the forty-eighth year of his Majesty's reign ; they the said governor and company of the Bank of Scotland, and the Koyal Bank of Scotland, and British Linen Company, respectively, giving such security, and keep- ing and producing true accounts of all the notes so to be issued by them respectively, and accounting for and paying the several duties payable in respect of such notes, in such and the *same manner, in all p^j^rrrv-i respects, as is and are prescribed and required by the said lastr ^ - -■ mentioned act, with regard to the notes thereby allowed to be issued by them on unstamped paper, and also to re-issue such promissory notes respectively, from time to time, after the payment thereof, as often as they shall think fit. XXIV. And be it further enacted, that from and after the tenth day of October, one thousand eight hundred and fifteen, it shall not be lawful for any banker or bankers, or other person or persons (except the governor and company of the Bank of England), to issue any promissory notes for money payable to the bearer on demand, hereby charged with a duty and allowed to be re-issued as aforesaid, without taking out a license yearly for that purpose; which license shall be granted by two or more of the said commissioners of stamps for the time being, or by some person authorized in that behalf by the said commissioners, or the major part of them, on payment of the duty charged thereon in the schedule hereunto' annexed ; and a separate and distinct license shall be taken out for or in respect of every town or place where any such promissory notes shall be issued, by or by any. agent or agents for or on account of any banker or bankers, or other person or persons ; and every such license shall spiecify the proper name or names, and place or places of abode, of the person or persons, or the proper name and description of any body corporate to whom the same shall be granted, and also the name of the town or place where, and the name of the bank, as well as the partnership or other name, style or firm under which such notes are to be issued ; and where any such license shall be granted to persons in partnership, the same shall specify and set forth the names and places of abode of all the persons concerned in the partner- 662 APPENDIX. ship, whether all their names shall appear on the promissory notes to be issued by them or not ; and, in default thereof, such license shall be abso- lutely void ; and every such license which shall be granted between the tenth day of October and the eleventh day of November, in any year, shall be dated on the eleventh day of October j and every such license which shall be granted at any other time, shall be dated on the day on which the same shall be granted ; and every such license respectively shall have effect and continue in force from the day of the date thereof until the tenth day of October following, both inclusive. XXV. Provided always, and be it further enacted, that no banker or bankers, person or persons, shall be obliged to take out more than four licenses in all for any number of towns or places in Scotland ; and in case any banker or bankers, person or persons, shall issue such promissory notes as aforesaid, by them'selves or their agents, at more than four different towns or places in- Scotland, then, after taking out three distinct licenses for three of such towns or places, such banker or bankers, person or per- sons, shall be entitled to have all the rest of such towns or places, included in a fourth license. *XXVI. Provided also, and be it further enacted, that where ■- J any banker or bankers, person or persons, applying for a license ' under this act, would under the said act of the forty-eighth (a) year of his Majesty's reign have been entitled to have two or more towns or places in England included in one license, if this act had not been made, such banker or bankers, person or persons, shall have and be entitled to the like privilege under this act. XXVII. And be it further enacted, that the banker or bankers, or other person or persons, applying for any such license as aforesaid, shall produce and leave with the proper officer a specimen of the promissory notes proposed to be issued by him or them, to the intent that the license maybe framed accordingly; and if any banker or bankers, or other person or persons (except the said governor and company of the Bank of Eng- land) shall issue or cause to be issued by any agent any promissory note ■for money payable to the bearer on demand, hereby charged with a duty, and allowed to be re-issued as aforesaid, without being licensed so to do in the manner aforesaid, or at any other town or place, or under any other name, style or firm than shall be specified in his or their license, the banker or bankfers, or other person or persons so offending, shall for every such offence forfeit the sum of one hundred pounds. (a) 48 Geo. 3, c. 149, s. 17. APPENDIX. 663 XXVIII. And be it further enacted, that where any such license as aforesaid shall be granted to any persons in partnership, the same shall continue in force for the issuing of promissory notes duly stamped, under the name, style or firm therein specified, until the tenth day of October inclusive, following the date thereof, notwithstanding any alteration in the partnership. XXIX. And be it further enacted, that from and after the passing of this act, promissory notes for the payment of money to the bearer on de- mand, made out of G-reat Britain, or purporting to. be made out of Great Britain, or purporting to be made by or on the behalf of any person or persons resident out of G-reat Britain, shall not be negotiable or be nego- tiated, or circulated or paid in Great Britain, whether the same shall be made payable in Great Britain or not, unless the same shall have paid such duty, and be stamped in such manner, as the law requires for pro- missory notes of the like tenor and value made in Great Britain ; and if any person or persons shall circulate or negotiate, or offer in payment, or shall receive or take in payment, any such promissory note, or shall de- mand or receive payment of the whole or any part of the money mentioned in such promissory note, from or on account of the drawer thereof, in Great Britain, the same not being duly stamped as aforesaid; or if any person or persons in Great Britain shall pay or cause to be paid the sum of money expressed in any such note, not being duly stamped as aforesaid, or any part thereof, either as drawer thereof, or in pursuance of any nomi- nation or *appointment ior that purpose therein contained, the person or persons so ofiending shall, for every such promissory [*472] note, forfeit the sum of twenty pounds : provided always, that this clause shall not extend to promissory notes made and payable only in Ireland. SCHEDULE. Inland Bill op Exchange, draft or order to the bearer, or to order, either on demand or otherwise, not exceeding two months after date, or sixty days after sight, of any sum of money — Amounting to 40s., and not exceeding 5?. 5s. Exceeding bl. 5s., not exceeding 20^. Exceeding 201., not exceeding 30?. Exceeding 30Z., not exceeding 50?. . Exceeding 50., not exceeding 100?. . Exceeding 100?., not eiceeding 200?. Exceeding 200?., not exceeding 300?. . d. 6 6 6 6- 664 APPENDIX. Exceeding 300?., not exceeding 500?. . Exceeding 500?., not exceeding 1000?. Exceeding 1000?., not exceeding 2000?. Exceeding 2000?., not exceeding 3000?. Exceeding 3000?. .... Inland bill of exchange, draft, or order for the payment to the bearer, or to order at any time exceeding two months after date, or sixty days after sight, of any sum of money — Amounting to 40«., and not exceeding 5?. 5s. Exceeding 5?. 5s., not exceeding 20?. . Exceeding 20?., not exceeding 30?. . Exceeding 30?., not exceeding 50?. Exceeding 50?., not exceeding 100?. . Exceeding 100?., not exceeding 200?. Exceeding 200?., not exceeding 300?. Exceeding 300?., not exceeding 500?. Exceeding 500?., not exceeding 1000?. Exceeding 1000?., not exceeding 2000?. Exceeding 2000?., not exceeding 3000?. Exceeding 3000?. . . ' . Inland bill, draft, or order, for the payment of any sum of money, though not made payable to the bearer, or to order, if the same shall be delivered to the payee, or some person on his or her behalf — the same duty as on a bill of exchange for the like sum, payable to bearer or order. Inland bill, draft, or order, for the payment of any sum of money, weekly, monthly, or at any other stated periods, if made payable to the bearer, or to order, or if delivered to the payee, or some person on his or her behalf, where the total amount of the money thereby made payable shall be specified therein, or can be *ascertained therefrom — the same £ t. d. 6 8 6 12 6 15 1 5 )S. 16 2 2 6 3 6 4 6 5 6 8 6 12 6 15 15 1 10 [*473] duty as on a bill payable to bearer or order on ,de- • mand, for a sum equal to such total amount. And where the total amount of the money thereby made pay- able shall be indefinite — the same duty as on a bill on demand, for the sum therein expressed only. And the following instruments shall be deemed and taken to be inland bills, drafts, or orders, for the payment of money, within the intent and meaning of this schedule, viz. : All drafts or orders for the payment of any sum of money, by a bill or promissory note, or for the delivery of any such bill APPENDIX, 665 or note, in payment or satisfaction of any sum of money, where such drafts or orders shall require the payment or delivery to be made to the bearer, or to order, or shall be delivered to the payee, or some person on his or her behalf; All receipts given by any banker or bankers, or other person or persons, for money received, which shall entitle, or be intended to entitle, the person or persons paying the money, or the bearer of such receipts, to receive the like sum from any third person or persons ; And all bills, drafts or orders, for the payment of any sum of money out of any particular fund, which may or may not be available, or upon any condition or contingency which may or may not be performed or happen, if the same shall be made payable to the bearer, or to order, or if the same shall be delivered to the payee, or some person on his or her behalf. Foreign Bill of Exchange (or bill of exchange drawn in, but payable out of, Great Britain), if drawn singly, and not in a set-— the same duty as on an inland bill of the same amount'and tenor. Foreign bills of exchange, drawn in sets, according to the custom of merchants, for every bill of each set, where the sum made payable thereby shall not exceed 100?. And where it shall exceed 100?., and not exceed 200?. Where it shall exceed 200?., and not exceed 500?. Where it shall exceed 500?., and not exceed lOOOZ. Where it shall exceed 1000?., and not exceed 2000?. Where it shall exceed 2000?., and not exceed 3000? Where it shall exceed 3000?. .... £ B. d. 1 6 3 4 5 7 6 10 15 Exemptions from the preceding and all other Stamp Duties. All bills of exchange, or bank post-bills, issued by the governor and company of the Bank of England. All bills, orders, remittance bills, and remittance certificates, drawn by commissioned officers, masters, and *sur- geons in the navy, or by any commissioner, or com- missioners of the navy, under the authority of the act passed in the thirty-fifth year of his Majesty's reign, for the more expeditious payment of the wages and pay of certain officers belonging to the navy. All bills drawn pursuant to any former act or acts of Parliament, [*474] 666 APPENDIX. by the commissioners of the navy, or by the commissioners for victualling the navy, or by the commissioners for managing the transport service, and for taking care of sick and wounded seamen, upon, and payable by, the treasurer of the navy. All drafts or orders for the payment of any sum of money to the bearer on demand, and drawn upon any banker or bankers, or any person or persons acting as a banker, who shall reside, or transact the business of a banker, within ten , miles of the place where such drafts or orders shall be issued, provided such place shall be specified in such drafts or orders, and provided the same shall bear date on or before the day on which the same shall be issued, and provided the same do not direct the payment to be made by bills or promissory notes. All bills for the pay and allowance of his Majesty's land forces, or for other expenditures liable to be charged in the public regimental or district accounts, which shall be drawn accord- ing to the forms now prescribed, or hereafter to be prescribed, by his Majesty's orders, by the paymasters of regiments or corps, or by the chief paymaster, or deputy paymaster, and accountant of the army depot, or by the paymasters of re- cruiting districts, or by the paymasters of detachments, or by the officer or .officers authorized to perform the duties of the paymastership during a vacancy, or the absence, suspen- sion, or incapacity, of any such paymaster, as aforesaid ; save and except such bills as shall be drawn in favor of contractors, or others, who furnish bread or forage to his Majesty's troops, and who, by their contracts or agreements, shall be liable to pay the stamp duties on the bills given in payment for the articles supplied by them. Promissory Note, for the payment, to the bearer, on demand, of any sum of money — Not exceeding 11. Is. Exceeding 11. Is, and not exceeding 21. 2s. Exceeding 21. 2s., and not exceeding bl. 5s. Exceeding 51. 5s., and not exceeding 101. Exceeding 101 , and not exceeding 201. Exceeding 20Z., and not exceeding 301. Exceeding SOL, and not exceeding 501. Exceeding oOl., and not exceeding 1001 Which said notes may be reissued, after payment thereof, as often as shall be thought fit. £ s. d- 5 10 1 3 1 9 2 3 5 8 6 APPENDIX. 667 £, s. d. . 1 . 1 6 . 2 . 2 6 . 3 6 ♦Promissory note for the payment, in any other man- p^^,,c-, ner than to the bearer on demand, but not ex- L J Deeding two months after date, or sixty days after sight, of any sum of money — Amounting to 40s., and not exceeding 5?. 5s, Exceeding bl. 5«., and not exceeding 20?. Exceeding 20?., and not exceeding 30?. Exceeding 30?., and not exceeding 50?. Exceeding 50?., and not exceeding 100?. These notes are not to be re-issued after being once paid. Promissory note for the payment, either to the bearer on de- mand, or in any other manner than to the bearer on de- mand, but not exceeding two months after date, or sixty days after sight, of any sum of money — Exceeding 100?., and not exceeding 200?. . Exceeding 200?., and not exceeding 300?. . Exceeding 300?., and not exceeding 500?. . Exceeding 500?., and not exceeding 1000?. Exceeding 1000?., and not exceeding 2000?. Exceeding 2000?., and not exceeding 3000?. Exceeding 3000?. These notes are not to be re-issued after being once paid. 4 6 5 6 8 6 12 6 15 1 5 Promissory note for the payment, to the bearer or otherwise, at any time exceeding two months after date, or sixty days after sight, of any sum of money — Amounting to 40s., and not exceeding 5?. 5s. Exceeding 5?. 5s., and not exceeding 20?. Exceeding 20?., and not exceeding 30?. Exceeding 30?., and riot exceeding 50?. Exceeding 50?., and not exceeding 100?. Exceeding 100?., and not exceeding 200?. Exceeding 200?., and not exceeding 300?. Exceeding 300?., and not exceeding 500?. Exceeding 500?., and not exceeding 1000?. . Exceeding 1000?., and not exceeding 2000?. Exceeding 2000?., and not exceeding 3000?. Exceeding 3000?. These notes are not to be re-issued after being once paid. Promissory note for the payment of any sum of money by instal- ments, or for the payment of several sums of money at dif- 1 6 2 2 6 3 6 4 6 5 6 8 6 12 6 15 1 5 1 10 668 APPENDIX. ferent days or times, so that the whole of the money to be paid shall be definite and certain. — The same duty as on a promissory note, payable in less than two months after date, for a sum equal to the whole amount of the money to be paid r*J.7flT *And the following instruments shall be deemed and L J taken to be promissory notes, within the intent and meaning of this schedule ; viz. All notes promising the payment of any sum or sums of money out of any particular fund, which may or may not be avail- able ; or upon any condition or contingency, which may or may not be performed or happen ; if the same shall be made payable to the bearer or to order, and if the same shall be definite and certain and not amount in the whole to twenty pounds J And all receipts for money deposited in any bank, or in the hands of any banker or bankers, which shall contain any agreement or memorandum, importing that interest shall be paid for the money so deposited. Exemptions from the Duties on Promissory Notes. All notes, promising the payment of any sum or sums of money out of any particular fund, which may or may not be avail- able ; or upon any condition or contingency which may or may not be performed or happen ; where the same shall not be made payable to the bearer or to order, and also where the same shall be made payable to the bearer or to order, if the same shall amount to twenty pounds, or be indefinite. ' And all other instruments, bearing in any degree the form or ' style of promissory notes, but which in law shall be deemed special agreements, except those hereby expressly directed to be deemed promissory notes. But such of the notes and instruments here exempted from the duty on promissory noteSj shall nevertheless be liable to the duty which may attach thereon as agreements or other- wise. Exemptions from the preceding and all other Stamp Duties. All promissory notes for the payment of money, issued by the Governor and Company of the Bank of England. APPENDIX. 669 Peotbst of any bill of exchaoge or promissory note, for any sum of money — Not amounting to 20Z. ..... Amounting to 20?., and not amounting to 100?. . Amounting to 100?., and not amounting to 500?. Amounting to 500?. or upwards .... Protest of any other kind . . ... And for every sheet or piece of paper, parchment, or vellum, upon which the same shall be written, after the first, a fur- ther progressive duty of 5 £ 8. d. . 2 . 3 . 5 . 10 . 5 *[58 Geo. 3, c. 93.] [*477] An Act to afford Relief to the bona fide Holders of Negotiable Securities, without Notice that they were given for a Usurious Consideration. "Whereas by the laws now in force all contracts and assurances what- soever, for payment of money, made for a usurious consideration are utterly void; and whereas, in the course of mercantile transactions, negotiable securities often pass into the hgnds of persons who have discounted the same without any knowledge of the original considerations for which the same were given; and the avoidance of such securities in the hands of such bond fide indorsees, without notice, is attended with great hardship and injustice;" for remedy thereof, be it enacted, by the king's ^ost excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by tho authority of the same, that no bill of exchange or promissory note that shall be drawn or made after the passing of this act, shall, though it may have been given for a usurious consideration or upon a usurious contract, be void in the hands of an indorsee for valuable consideration, unless such indorsee had, at the time of discounting or paying such consideration for the same, actual notice that such bill of exchange or promissory note had been originally given for a usurious consideration or upon a usurious con- tract. [1 & 2 Geo. 4, c. 78.] An Act to regulate Acceptances of Bills, of Exchange: Whereas, according to law as hath been adjudged, where a bill is accepted payable at a bankers, the acceptance thereof' is not a general but a qualified acceptance; and whereas a practice hath very generally pre- 670 APPENDIX. vailed among merchants and traders so to accept bills, and the same have, among such persons, been verj generally considered as bills , generally accepted, and accepted without qualification : and whereas many persons have been and may be much prejudiced and misled by such practice and understanding, and persons accepting bills may relieve themselves from all inconvenience, by giving. such notice as hereinafter mentioned of their intention to n\ake only a qualified acceptance thereof: be it therefore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after the first day of August now next ensuing, if any person shall accept a bill of exchange payable at the house of a banker or other place, without further expression in his acceptance, such acceptance shall be deemed and taken to be, to all intents and purposes, a general acceptance of such bill; but if the acceptor shall, in his acceptance, express that he accepts the r*A78n ^^^^ payable at the banker's house or other *place only, and not •- -' otherwise or elsewhere, such acceptance shall be deemed and taken to be, to all intents and purposes, a qualified koceptance of such bill, and the acceptor shall not be liable to pay the said bill, except in default of payment when such payment shall have been first duly demanded at such banker's house or other place. II. And be it further enacted, that from and after the said first day of' August, no acceptance of any inland bill of exchange shall be sufficient to charge any person, unless such acceptance be in writing on such bill, or if there be more than one part of such bill, on one of the said parts. [7 & 8 Geo. 4, c. 15.] An Act for declaring the Law in relation to Bills of Exchange and Promissory Notes becoming payable on Good Friilay or Christmas Day. " Whereas an act was passed in the thirty-ninth and fortieth years of the reign of his late Majesty King George the Third, intituled 'Ad Act ■ for the better Observance of Good Friday in certain cases therein men- tioned;' and it was thereby enacted, that where bills of exchange and promissory notes became due and payable on Good Friday, the same should, from and after the first day of Juge then next ensuing, be payable on the day before Good Friday ; and that the holder or holders of such bills of exchange or promissory notes might note and protest the same for non- payment on the day preceding Good Friday, in like manner as if the same APPENDIX. 671 had fallen due and become payable on the day preceding Good Friday; and that such noting and protest should have the same effect and operation at law as if such bills and promissory notes had fallen due and become payable on the day preceding Good Friday, in the same manner as was usual in cases of bills of exchange and promissory notes coming due on the day before any Lord's Day, commonly called Sunday, and before the feast of the Nativity or birthday of our Lord, commonly called Christmas Day; and whereas, notwithstanding the said recited act, and notwithstanding the general custom of merchants, doubts have arisen whether notice of the dis- honor of bills of exchange and promissory notes falling due on any Good Friday, or on any Christmas Day, should not be given on such Good Friday or Christmas Day respectively, and whether 'in eases where bills of exchange and promissory notes fall due on the day preceding any Good Friday or Christmas Day, notice of the dishonor thereof should not be given on the Good Friday or the Christmas Day next after the same bills of exchange and promissory notes so fall due ; and it is expedient that such doubts should be removed:" be it therefore declared and enacted, by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, *and by the authority of the same, that from and inimediately after the tenth day of April, one thousand eight hundred and L '*'''J twenty-seven, in all cases where bills of exchange or promissory notes shall be payable, either under or by virtue of the said recited act, or other- wise, on the day preceding any Good Friday, or on the day preceding any Christmas Day, it shall not be necessary for the bolder or holders of such bills of exchange or promissory notes to give, notice of the dishonor thereof until the day next after such Good Friday or Christmas Day; and that whenever Christmas Day shall fall on a Monday, it shall not be necessary for the bolder or holders of such bills of exchange or promissory notes as shall be payable on the preceding Saturday,' to give notice of the dishonor thereof until the Tuesday next after such Christmas day ; and that every such notice given as aforesaid, shall be valid and effectual to all intents and purposes. II. And whereas similar doubts have existed with respect to bills of exchange and promissory notes falling due upon days appointed by his Majesty's proclamation for solemn fasts or days of thanksgiving, or upon the day next preceding such days respectively, and it is expedient that such doubts should be removed; be it therefore further declared and enacted, that from and after the said tenth day of April, one thousand eight hundred and twenty-seven, in all cases where bills of exchange ot promissory notes shall become due and payable on any day appointed by his Majesty's proclamation for a day of solemn fast or a day of thanks- 672 APPENDIX. giving, the same shall be payable on the day next preceding such day of fast or day of thanksgiving, and in case of nonpayment may be noted and protested on such preceding day ; and that as well in such cases as in the ease of bills of exchange and promissory notes becoming due and payable on the day preceding any such day of fast or day of thanksgiving, it shall not be necessary for the holder or holders of such bills of exchange and promissory notes to give notice of the dishonor thereof until the day next after such day of fast or day of thanksgiving ; and that whensoever such day of fast or day of thanksgiving shall be appointed on a Monday, it shall not be necessary for the holder or holders of such bills of exchange or promissory notes as shall be payable on the preceding Saturday, to give notice of the dishonor thereof until the Tuesday next after such day of fast or day of thanksgiving respectively, and that .every such notice, so given as aforesaid, shall be valid and effectual to all intents and purposes. III. And be it further enacted, that from and after the said tenth of April, one thousand eight hundred and twenty-seven, Good Friday and Christmas Day, and every such day of fast or thanksgiving so appointed by his Majesty, is and shall for all other purposes whatever, as regards bills of exchange and promissory notes, be treated and considered as the Lord's Day, commonly called Sunday. r*A8fn *^^' •P'^O'^'i*^^'^ always and be it further enacted, that nothing L -"in this act contained shall extend or be construed to extend to that part of the United Kingdom called Scotland. [9 Geo. 4, c. 14, ss. 1, 3, 4, 5, 8.] An Act for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements. " Whereas, by an act passed in England, in the twenty^first year of the Keign of King James the First, it was, among other things, enacted, that all actions of account and upon the case, other than such accounts as con- cern the trade of merchandize between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or con- tract without specialty, and all actions of debt for arrearages of rent, should be commenced within three years after the end of the then present session of parliament, or within six years next after the cause of such actions or suit, and not after : and whereas a similar enactment is contained in an act passed in Ireland, in the tenth year of the reign of King Charles the First; and whereas various questions have arisen in actions founded on APPENDIX. 673 simple contract, as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactmeats; and it is expedient to prevent such questions, and to make provision for giving effect to the said • enactments ; and to the intention thereof :" be it therefore enacted, by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that, in actions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing con- tract, whereby to take any case out of the operation of the said enactments or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing, to be signed by the party chargeable thereby; and that where there sliall be two or "more joint contractors, or executors or administrators of any contractor," no such joint contractor, executor or administrator, shall Jose the beno-fit of the said enactments or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them ; provided always, that nothing herein contained shall alter, or take away or lessen the 'effect of any payment of any principal or interest made by any person whatso- ever : provided also, that in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear, at the trial or otherwise, that the plaintiff, though barred by either of the said recited acts or this act, as to one or more of such joint contractors, or *executors or administrators, shall nevertheless be entitled to recover against any other or others of' the defendants, by virtue ^ J of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, or for the other defendant or defendants, against the plaintiff. Iir. And be it further enacted, that no indorsement or memorandum ot any payment, written or made after the time appointed for this act to take effect, upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes. IV. And be it further enacted, that the recited acts, and this act, shall be deemed and taken to apply to the case of any debt on simple contract, alleged by way of set-off on the part of any defendant, either by plea, notice or otherwise. 43 674 APPENDIX. V. And be it further enacted, that no •action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification, after full age, of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith. VIII. And be it further enacted, that no memorandum or other writing, made necessary by this act, shall be deemed to be an agreement within the meaning of any statute relating to the duties of stamps. [2 & 3 Will. 4, c. 98.] An Act for regulating the Protesting for Nonp.ayment of Bills of Hx- cliange drawn payable at a Place not being the Place of the Residence of the Drawee or Drawees of the same. " Whereas doubts having arisen as to the place in which it is requisite to protest for nonpayment bills of exchange, which od the presentment for acceptance to the drawee or drawees shall not have been accepted, such bills of exchange being made payable at a place other than the place mentioned therein to be the residence of the drawee or drawees thereof, and it is expedient to remove such doubts ;" be it therefore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament . assembled, and by the authority of the same, That from and after the r*A QOi P*8si°g °f *^is ^"^ ^1' ^'"^ °^ exchange wherein the *drawer or L *'-' drawers thereof shall have expressed that such bills of exchange are to be payable in any place other than the place by him or them therein mentioned to be the residence of the drawee or drawees thereof, and which shall not on the presentment for acceptance thereof be accepted, shall or may be, without further presentment to the drawee or drawees, protested , for non-payment in the place in which such bills of exchange shall have been by the drawer or drawers expressed to be payable, unless the amount > owing upon such bills of exchange shall have been paid to the holder or holders thereof on the day on which such bills of exchange would have ^ become payable, had the same been duly accepted. [3 & 4 Will. 4, c. 42, ss. 12, 28, 29.] An Act for the further Amendment of the Law and the belter Advance- ment of Justice. XIT. And be it further enacted, that in all actions upon bills of ex- change or promissory notes or other written instruments, any of the par- APPENDIX. 676 ties to which are designated by the initial letter or letters, or some contrac- tion of the christian or first name or names, it shall be sufficient in every affidavit to hold to bail, and in the process or declaration to designate such persona by the same initial letter or letters, or contraction of the christian or first name or names, instead of stating the christian or first name or names in full. XXVIIL' And be it further enacted,, that upom all debts or sums cer- tain, payable at a certain time or otherwise, the jury, on the trial of any issue or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or, if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment ; provided that interest shall be payable in all cases in which it is now payable by law. XXIX. And be it further enacted, that the jury, on the trial of any issue or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure, in all actions of trover or trespass cZe bonis asportatis, and ^ver and above the money recoverable in all actions on policies of assurance made after the passing of this act. *[5 & 6 Will. 4, c. 41.]. [*483] An Act to amend the Law relating to Securities given for Considerations arising out of Gaming, usurio/is and certain other illegal Transac- " Whereas by an act passed in the sixteeuth year of the reign of his late Majesty King Charles the Second, and by an act passed in the parliament of Ireland in the tenth year of the reign of his late Majesty King William the Third, each of such acts being intituled ' An Act agaiast deceitful, disorderly and excessive Gaming,' it was enacted, that all and singular judgments, statutes, recognizances, mortgages, conveyances, assurances, bonds, bills, specialties, promises, covenants, agreements and other acts, deeds and securities whatsoever, which should be obtaioed, made, given, acknowledged or entered into for security or satisfaction of or for any money or other thing lost at play or otherwise as in the said acts respect- 676 APPENDIX. ively is mentioned, or for any part thereof, should be utterly void and of none effect : and whereas by an act passed in the ninth year of the reign of her late Majesty Queen Anne, and also by an aet passed. in the parlia- ment of Ireland in the eleventh year of the reign of her said late majesty,- each of such acts being intituled ' An Act for the better preventing of ex- cessive and deceitful Gaming,' it was enacted, that from and after the several days therein respectively mentioned all notes, bills, bonds, judg- ments, mortgages or other securities or conveyances whatsoever, given, granted, drawn or entered into or executed by any person or persons what- soever, where the whole or any part of the consideration of such convey- ances or securities should be for any money or other valuable thing what-, soever won by gaming or playing at cards, dice, tables, tennis, bowls or other game or games whatsoever, or by betting on the sides or hands of such as did game at any of the games aforesaid, or for the reimbursingjor repaying any money knowingly lent or advanced for such gaming or bet- ting as aforesaid, or lent or advanced at the time and place of such play to any person or persons so gaming or betting as aforesaid, or that should, during such play, so play or bet, should be utterly void, frustrate and of none effect to all intents and purposes whatsoever : and that where such mortgages) securities or other conveyances should be of lands, tenements or hereditaments, or should be such as should incumber or affect the same, such mortgages, securities or other conveyances should enure and be to and for the sole use and benefit of and should devolve upon such person or persons as should or might have or be entitled, to such lands or heredita- ments in case the said grantor or grantors thereof or the person or persons so incumbering the same had been naturally dead, and as if such mort- gages, securities or other conveyances had been made to such person or persons so to be entitled after the decease of the person or person so in- cumbering the same ; and that all grants or conveyances to be made for the preventing of such lands, tenements or hereditaments from coming to or devolving upon such person or persons thereby intended to enjoy the r*A QAT ^^™^ ^ aforesaid should be deemed fraudulent and void *and of L -I none effect to all intents and purposes whatsoever : and whereas by an a!ct passed in the twelfth year of the reign of her said late Majesty Queen Anne, intituled ' An Act to reduce the Rate of Interest without any Prejudice to Parliamentary Securities,' it was enacted, that all bonds,, contracts and assurances whatsoever made after the twenty-ninth day of September, one thousand seven hundred and fourteen, for payment of any principal or money to be lent or covenanted, to be performed upon or for any usury, whereupon or whereby there should be reserved or taken above the rate of five pounds in the hundred, as therein mentioned, should he utterly void : and whereas by an act passed in the parliament of Ireland in the fifth year of the reign of his late Majesty King G-eorge the Second, APPENDIX. 677 intituled ' An Act for reducing the Interest of Money to Six per Cent./ it was enacted, that all bonds, contracts and assurances whatsoever made after the first day of May, one thousand seven hundred and thirty-two, for pay- ment of any principal or money to be lent or covenant to be performed upon or for anj loan, whereupon or whereby there should be taken or reserved above the rate of six pounds in the hundred, should be utterly void : and whereas by an act passed in the fifty-eighth year of the reign of his late Majesty King George the Third, intituled ' An Act to afford Relief to the bona fide holders of Negotiable Securities without Notice that they were given for a usurious Consideration,' it was enacted, that no bill of exchange or promissory note that should be drawn or made after the passing of that act should, though it might have been given for a usurious consideration or upon a usurious contract, be void in the hands of an indorsee for valu- able consideration, unless such indorsee had at the time of discounting or paying such consideration for the same actual notice that such bill of ex- change or promissory note had been originally given for a usurious con- sideration or upon a usurious contract : and whereas by an act passed in the parliament of Ireland in the eleventh and twelfth years of the reign of his said late Majesty King George the Third, intituled ' An Act to prevent Frauds committed by Bankrupts,' it was enacted, that every bond, bill, note, contract, agreement or other security whatsoever to be made or given by any bankrupt or by any other person unto or to the use of or in trust for any'creditor or creditors, or for the security of the payment of any debt or sum of money due from such bankrupt at the time of his becoming bank- rupt, or'any part thereof, between the time of his becoming bankrupt and such bankrupt's discharge, as a consideration or to the intent to persuade him, her or them to consent to or sign any such allowance or certificate, should be wholly void and of no effect, and the moneys there secured or agreed to be paid should not be recovered or recoverable : and whereas by an act passed in the forty-fifth year of the reign of his said late Majesty King George the Third, intituled ' An Act for the Encouragement of Seamen, and for the bet- ter and more effectually manning his Majesty's Navy during the present War,' it was enacted, that all contracts and agreements which should be entered into, and all bills, notes and other securities which should be given by any *person or persons for ransom of any ship or vessel, or of any rj^Anr-i merchandize or goods on board the same, contrary to that act, ^ -' should be absolutely null and void in law, and of no effect whatsoever : and whereas by an act passed in the sixth year of , the reign of his late Majesty King George the Fourth, intituled ' An Act to amend the Laws relating to Bankrupts,' it was enacted, that any contract or security made or given by any banker or other person unto or in trust for any creditor, or for securing the payment of any money due by such bankrupt at his banjsruptcy, as a consideration or with intent to persuade such creditor to 678 APPENDIX. consent to or sign the certificate of any such bankrupt, should be void, and the money thereby secured or agreed to be paid should not be recover- able, and the party sued on such contract or security might plead the general issue,^and give that act and the special matter in evidence: and whereas securities , and instruments made void by virtue of the several hereinbefore recited acts of the sixteenth year of the reign of his said late Majesty King Charles the Second, the tenth year of the reign of his said late Majesty King William the Third, the ninth and eleventh years of the reign of her said late Majesty Queen Anne, the eleventh and twelfth years of the reign of his said late Majesty King George the Third, the forty-, fifth year of the reign of his said late Majesty King George the Third, and the sixth year of the reign of his said late Majesty King George the Fourth, and securities and instruments made void by virtue of the said act of the twelfth year of the reign of her said late Majesty Queen Anne, and the fifth year of the reign of his said late Majesty King George the Second, other than bills of exchange or promissory note's made valid by the said act of the fifty-eighth year of the reign of his late Majesty King George the Third, are sometimes indorsed, transferred, assigned or conveyed to purchasers or other persons for a valuable consideration, without notice of the original consideration for which such securities or instruments were given ; and the avoidance of such securities or instruments in the hands of such purchasers or other persons is often attended with great hardship, and injustice :" for remedy thereof be it enacted by the king's most excellentif' Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same. That so much of the hereinbefore recited acts of the sixteenth year of the reign of his said late Majesty King Charles the Second, the tenth year of the reign of his said late Majesty King William the Third, the ninth, eleventh and twelfth years of the reign of her said late Majesty Queen Anne, the fifth year of the reign of his said late Majesty ' King George the Second, the eleventh and twelfth and the forty-fifth years of the reign of his late Majesty King George the Third, and the sixth year of the reign of his said late Majesty King George the Fourth, as enacts / that any note, bill or mortgage shall be absolutely void, shall be and the same is hereby repealed; but nevertheless every note, bill or mortgage which if this act had not been passed would, by virtue of the said several r*zi«fiT ^^^% hereinbefore *mentioned acts or any of them, have been L -* absolutely void, shall be deemed and taken to have been made, drawn, accepted, given or executed for an illegal consideration, and the said several acts shall have the same force and efi«ct which they would respectively have had if, instead of enacting that any such note, bill or mortgage should be absolutely void, such acts had respectively provided that every such note, bill or mortgage should be deemed and taken to have APPENDIX. 679 been made, drawn, accepted, given or executed for an illegal consideration : provided always, that nothing herein contained shall prejudice or aflfect any note, bill or mortgage which would have been good and valid if this act had not been passed. 11. And be it further enacted, that in case any person shall after the passing of this act, make, draw, give or execute any note, hill or mortgage for any consideration on account of which the same is by the hereinbefore recited acts of the sixteenth year of the reign of his said late Majesty Khig'fl'harles the Second, the tenth year of the reign of his said late Majesty King William the Third, and the ninth and eleventh years of the reign of her said late Majesty Queen Anne, or by any one or more of such acts, declared to be void, and such person shall actually pay to any indorsee, holder or assignee of such note, bill or mortgage the amount of the money thereby secured, or any part thereof, such money so paid shall be deemed and taken to have been paid for and on account of the person to whom such note, bill or mortgage was originally given upon such illegal con- sideration as aforesaid, and shall be deemed and taken to be a debt due and owing from such last-named person to the person who shall have so paid such money, and shall accordingly be recoverable by action at law in any of his Majesty's courts of record. III.. And be it further enacted, that so much of the said acts of the ninii and eleventh years of the reign of her said late Majesty Queen Anne aa enacts that where such mortgages, securities or other conveyances as therein mentioned should be of lands, tenements or hereditaments, or should be such as should incumber or affect the same, such mortgages, securities or other conveyances should enure and be to and for the sole use and benefit of and should devolve upon such person or persons as should or might have or be entitled to such lands or hereditaments in case the grantor or grantors thereof, or the person or persons incumbering the same, had been naturally dead, and as if such mortgages, securities or other convey- ances had been made to such person or persons so as to be entitled after the decease of the person or persons so incumbering the same, and that all grants or conveyances to be made for the preventing of such lands, tene- ments or hereditaments from coming to or devolving upon such person or persons thereby intended to enjoy the same as aforesaid, should be deemed fraudulent and void, and of none effect to all intents and purposes whatso- ever, shall be and the same is hereby repealed ; saving to all *per- r-^j^orr-i sons all rights acquired by virtue thereof previously to the passing L -■ of the act. IV. And be it further enacted, that this act may be altered or repealed ■ by any other act daring this present session of parliament. 680 APPENDIX. [6 & 7 Will. 4, e. 58.] An Act for. declaring the Law as to the Day on which it is requisite to present for Payment to the Acceptors or Acceptor supra Protest for Honour, or to the Referees or Referee in Case of Need, Bills of Exchange which had been dishonoured. " Whereas bills of exobange are oooasionally accepted supra protest for bonour or have a reference thereon in case of need : and whereas doubts have arisen when bills have been protested for want of payment as to the day on which it is requisite" that they should be presented for payment to the acceptors or acceptor for honour, or to the referees or referee, and it is expedient that such doubts should be removed ;" be it therefore declared and enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this pre-, sent parliament assembled, and by the authority of the same, that it shall not be necessary to present such bills of exchange to such acceptors or acceptor for honour, or to suph referees or referee, until the day following the day on which such bills of exchange shall become due ; and that if the place of address on such bill of exchange of such acceptors or acceptor for honour, or of such referees or referee, shall be in any city, town, or place, other than in the city, town, or place where such bill shall be therein made payable, then it shall not be necessary to forward such bill of exchange for presentment for payment to such acceptors or acceptor for honour, or referees or referee; until the day following the day on which such bill of exchange shall become due. II. And be it further enacted and declared, that if the day following the day on which such bill of exchange shall become due shall happen to be a Sunday, Grood Friday, or Christmas Day, or a day "appointed by his Majesty's proclamation for solemn fast or of thanksgiving, then it shall not be necessary that such bill of exchange shall be presented for payment, or be forwarded for such presentment for payment, to such acceptors or acceptor for honour, or referees or referee, until the day following such Sunday, Good Friday, Christmas Day, or solemn fast or day of thanks- giving. [*488] *[1 & 2 Viot. c. 110.] An Act for abolishing Arrest on Mesne Process in Civil Actions, except in certain Cases ; for extending the Remedies of Creditors against the Property of Debtors; and for amending the Laws for the Relief of Insolvent Debtors in England. [16th August, 1838.] Whereas the present power of arrest upon mesne process is unnecessarily extensive and severe, and ought to be relaxed : be it therefore enacted by APPENDIX. 681 the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present pai;lia- ment assembled, and by the authority of the same, that from and after the time appointed for the commencement of this act no person shall be arrested upon mesne process in any civil action in any inferior court what- soever, or (except in the cases and in the manner hereinafter provided for) in any superior court. II. And be it enacted, that all personal actions in her Majesty's superior courts of law at Westminster shall be commenced by writ of summons. III. And be it enacted, that if a plaintiff in any action in any of her Majesty's superior courts of law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a judge, or without such order, shall, by the affidavit of himself or of some other person, show, to the satisfaction of a judge of one of the said superior courts, that such plaintiff has a cause of action against the defendant or defendants to the amount of twenty pounds or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant, or any one or more of the defendants, is or are about to quit England unless he or they be forthwith apprehended, it shall be lawful for such judge, by a special order, to direct that such defendant or defendants so about to quit England shall be held to bail for such sum as such judge shall think fit, not exceeding the amount of the debt or damages ; and thereupon it shall be lawful for such plaintiff, within the time which shall be expressed in such order, but not afterwards, to sue out one of more writ or writs of capias into one or more different counties, ^as the case may require, against any such defendant so directed to be held to bail, which writ of capias shall be in the form contained in the schedule to this act annexed, and shall bear date on the day on which the same shall be issued : Provided always, that the said writ of capias, and all writs of execution to be issued out of the superior courts of law at Westminster into the counties palatine of Lancaster and D.urham, shall be directed to the Chancellor of the county palatine o"f Lancaster, or his deputy there, or to the Chancellor of the county palatine at Durham, or his deputy there. IV. And be it enacted, that the sheriff or other officer to whom any such writ of capias shall be directed, shall within one calendar j-^ . ___ *month after the date thereof, including the day of such date, '- -■ but not afterwards, proceed to arrest the defendant thereupon ; and such defendant when so arrested shall remain in custody until he shall have given a bail bond to the sheriff, or shall have made deposit of the sum indorsed on such writ of capias, together with ten pounds for costs, accord- 682 APPENDIX. ing to the present practice of the said superior courts ; and all subsequent proceedings as to the putting in and perfecting special bail, or of making deposit and payment of money into court, instead of putting in and per- fecting special bail, shall be according to the like practice of the said superior courts, or as near thereto as the circumstances of the case will admit. V. And be it enacted, that any such special order may be made, and the defendant arrested in pursuance thereof, at any time after -the com- mencement of such action, and before final judgment shall have been ob- tained therein ; and that a defendant in custody upon any such arrest, and not previously served vfith a copy of the writ of summons, may be law- fully served therewith. VI. And be it enacted, that it shall be lawful for any person arrested upon any such writ of capias to apply at any time after such arrest to a judge of one of the superior courts at Westminster, or to the court in which the action shall have been commenced, for an order or rule on the plaintiff in such action, to show cause why the person arrested should not be disch&ged out of custody; and that it shall bo lawful for such judge or court to make absolute or discharge such order or rule, and to direct the cost of the application to be paid by either partj, or to make such other order therein as to such judge or court shall seem fit ; provided that any such order made by a judge may be discharged or varied by the court, on application made thereto by either party dissatisfied with such order. VII. And be it enacted, that every prisoner who at the time appointed for the commencement of this act shall be in custody upon mesne process for any debt or demand, and shall not have filed a petition to be discharged under the laws now in force for the relief of insolvent debtors, shall be entitled to his discharge upon entering a common appearance to the action : Provided nevertheless, that every such prisoner shall be liable to be de- tained, or after such discharge to be again arrested, by virtue of any such special order as aforesaid, at the suit of the plaintiff at. whose suit he was previously arrested, or of any other plaintiff. XII. And be it enacted, that by virtue of any writ of fieri facias to be sued out of any superior or inferior court after the time appointed for the commencement of this act, or any precept in pursuance thereof, the sheriff or other officer having the execution thereof may and shall seize and take any money or bank notes (whet"her of the governor and company of the bank of England, or of any other bank or bankers), and any cheques, bills r*4.Qm °^ exchange, *promissory notes, bonds, specialties, or other securi- ^ -' ties for money, belonging to the person against whose effects such APPENDIX.- 683 writ of fieri facias shall be sued out; and may and shall pay or deliver to the party suing out such execution any money or bank notes which shall be so seized or a sufficient part thereof: and may and shall hold any such cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money as a security or securities for the amount of such writ of fieri facias directed to be levied, or so much thereof as shall not have been otherwise levied and raised : and may sue in the name of such sheriff or other officer for the recovery of the sum or sums secured thereby, if and when the time of payment thereof shall have arrived ; and that the pay- ment to such sheriff or other officer by the party liable on any such cheque, bill of exchange, promissory note, bond, specialty, or other security, with or without suit, or the recovery and levying execution against the party so liable, shall discharge him to the extent of such payment, or of such re- covery and levy in execution, as the case may be, from his liability on any such cheque, bill of exchange, promissory note, bond, specialty or other security ; and such sheriff or other officer may and shall pay over to the party suing out such writ the money so to be recovered, or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied; and if, after satisfaction of the amount so to be levied, together with sheriff's poundage and expenses, any surplus shall remain in the hands of such sheriff or other officer, the same shall be paid to the, party against whom such writ shall be so issued ; provided that no such sheriff or other officer shall be bound to sue any party liable upon any such cheque, bill of exchange, promissory note, bond, specialty, or other security, unless the party suing out such execution shall enter into a bond, with two sufficient sureties, for indemnifying him from all costs and ex- penses to be incurred in the prosecution of such action, or to which he may become liable in consequence thereof, the expense of such bond to be deducted out of any money to be recovered in such action. XVI. And be it enacted, that if any judgment creditor, who, under the powers of this act shall have obtained any charge or be entitled to the benefit of any security whatsoever, shall afterwards and before the property so charged or secured shall have been converted into money or realized, and the produce thereof applied towards payment of the judgment debt, cause the person of the judgment debtor to be taken or charged in execu- tion upon such judgment, then and in such case such judgment creditor shall be deemed and taken to have relinquished all right and title to the benefit of such charge or security, and shall forfeit the same accordingly. XVII. And be it enaotedi that every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of enter- 684 APPENDIX. _ ing up the judgment, or from the time of *the commencement of '- -^ this act in cases of judgments then entered up and not carrying interest, until the same shall be satisfied; and such interest maybe levied under a writ of execution on such judgment. [2 & 3 Vict, c; 29.] An Act for the better Protection of Parties dealing with Persons liable to the Bankrupt Laws. [19th July, 1839.] Whereas by an act passed in the sixth year of the reign of his late Majesty King George the Fourth, intituled " An Act to amend the Laws relating to Bankrupts," it was among other things enacted, that all pay- ments really and bona fide made by any bankrupt or by any person on his behalf, before the date and issuing of the commission against such bank- rupt, to any creditor of such bankrupt (such payment not being a fraudu- lent preference of such creditor), should be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed, and that all payments really and bona fide made to any bankrupt before the date and issuing of the commission against such bankrupt should be deemed valid, notwithstanding any prior act of bankruptcy committed, and that such creditor should not be liable to refund the same to the assignees of such bankrupt, provided the person so dealing with the bankrupt had not at the time of such payment to such bankrupt notice of any bankruptcy com- mitted ; and "whereas by an act passed in this present session of parliament, intituled "An Act for the better Protection of Purchasers against Judg- ments, Crown Debts, Lis pendens, and Eiats in Bankruptcy," it is amongst other things enacted, that all conveyances by any bankrupt, bona fide made and executed before the date and issuing of the fiat against such bankrupt, shall be valid, notwithstanding any prior act of bankruptcy by him com- mitted, provided the person or persons to whom such bankrupt so conveyed had not at the time of such conveyance notice of any prior act of bank- ruptcy by him committed : and whereas it is expedient that further pro- tection should be given to persons dealing with bankrupts before the issuing of any fiat against them : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assem- bled, and by the authority of the same. That all contracts, dealings and transactions, by and with any bankrupt really and bonS, fide made and entered into before the date and issuing of the fiat against him, and all executions and attachments against the lauds and tenements or goods and chattels of such bankrupt, bona fide executed or levied before the date and issuing of the fiat, shall be deemed to he valid, notwithstanding any prior APPENDIX. 685 I act of bankruptcy by such bankrupt committed j provided the person or persons so dealing with such bankrupt, or at whose suit or on whose account such execution or attachment shall have issued, had not at the time of such contract, dealing, or *transaction, or at the time of executing or levying such execution or attachment, notice of any '- -^ prior act of bankruptcy by him committed : provided also, that nothing herein contained shall be deemed or taken to give validity to any payment made by any bankrupt being a fraudulent preference of any creditor or creditors of such bankrupt, or to any execution founded on a judgment on a warrant of attorney or cognovit given by any bankrupt by way of such fraudulent preference. II. And be it further enacted, that this act may be repealed or altered by any other act in this present session of parliament. [2 & 3 Vict. c. 37.] An Act to amend, and extend until the First day of January, One tJiou- sand eight hundred and forty-two, the Provisions of an Act of the First Year of her present Majesty, for exempting certain Bills of Exchange and Promissory Notes from the Operation of the Laws relating to Usury. [29th July, 1839.] Whereas by an act passed in the first year of the reign of her present Majesty, intituled "An Act to exempt certain Bills of Exchange and Promissory Notes, from the Operation of the Laws relating to Usury," it was enacted, that bills of exchange payable at or within twelve months should not be liable, for a limited time, to the laws for the prevention of usury : and whereas the duration of the said act was limited to the first day of January, one thousand eight hundred and forty; and it is expedi- ent that the provisions of the said act should be extended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same. That from and after the passing of this act no bill of exchange or promissory note made payable at or within twelve months after the date thereof, or not having more than twelve months to run, nor any contract for the loan or forbearance of money, above the sum of ten pounds sterling, shall, by reason of any interest taken thereon or secured thereby, or any agreement to pay or receive or allow interest in discounting, negotiating or transfer- ring any such bill of exchange or j)romissory note, be void, nor shall the liability of any party to any such bill of exchange or promissory note, nor the liability of any person borrowing any sum of money as aforesaid, be APPENDIX. affected, by reason of any statute or law in force for the prevention.of usury ; nor shall any person or persons or body corporate drawing, accept- ing, indorsing, or signing any such bill or note, or lending or advancing or forbearing any money as aforesaid, or taking more than the present rate of legal interest, in Great Britain and Ireland respectively, for the loan or forbearance of money as aforesaid, be subject to any penalties under any statute or law relating to usury, or any other penalty or forfeiture ; any- r*4QQi ^'^i'^g ^^ ^^y '^^ °^ statute relating to *usury, or any other law L -' whatsoever in force in any part of the United !^ingdom, to the contrary notwithstanding : Provided alwaye, that nothing herein contained shall extend to the loan or forbearance of any money upon security of any lands, tenements, or hereditaments, or any estate or interest therein. ri. Provided always, and be it enacted, that nothing in this act contained shall be construed to enable any person or persons tO' claim, in any court of law or equity, more than five per cent, interest on any account or on any contract or engagement, notwithstanding they may be relieved from the penalties against usury, unless it shall appear to the Court that any different rAte of interest was agreed to between the parties. III. Provided always, and be it enacted, that nothing herein contained shall extend or be construed to extend to repeal or affect any statute relating . to pawnbrokers, but that all laws touching and concerning pawnbrokers shall remain in full force and effect, to all intents and purposes whatsoever, as if this act had not been passed. IV. And be it enacted, that this, act shall continue in force until the first day of January, one thousand eight hundred and forty-two. V. And be it enacted, that this act may be amended or repealed by any act to be passed in this session of parliament. iContinued h/ the S & 4 Vict. c. 83; 4 I. From and after the tenth day of October, one thousand eight hun- dred and fifty-four, the stamp duties now payable in Great Britain and Ireland respectively, under or by virtue of any act or acts of parliament for or in respect of the several instruments, matters, and things mentioned or described in the schedule to this act annexed, and whereon other duties are by this act granted, shall respectively cease and determine, and shall be and the same are hereby repealed ; and in Ueu thereof there shall be granted, charged, and paid in and throughout the United Kingdom of Great Britain and Ireland, unto and for the use of her Majesty, her heirs and successors, upon and in respect of the several instruments, matters, and things described or mentioned in the said schedule, or upon or in respect of the vellum, parchment, or paper upon which any of them respectively %hall be written, the several duties or sums of money specified and set forth in the said schedule, which said schedule, and the several provisions, regulatibns, and directions therein contained, shall be deemed and taken to be part of this act, and shall be applied, observed, and put in ezecution accordingly : Provided always, that nothing herein contained shall extend to repeal or alter any of the said stamp duties now payable in relation to any bill of exchange, promissory note, or other instrument which shall have been drawn, made, or signed, or which shall bear date before or upon the said tenth day of October, one thousand eight hundred and fifty-four. II. The said duties by this act granted shall be denominated and deemed to be stamp duties, and shall be under the care and management of the commissioners of inland revenue for the time being ; and all the powers, provisions, clauses, regulations, directions, allowances, and exemptions, fines, forfeitures, pains, and penalties contained in or imposed by any act or acts or any schedule thereto, relating to any duties of the same kind or description heretofore payable in Great Britain and Ireland respectively, and in force at the time of the passing of this act, shall respectively be in full force and effect with respect to the duties by this act granted, and to the vellum, parchment, and paper, instruments, matters, and things charged and chargeable therewith, and to the persons liable to the payment of the said duties, so far as the same are or shall be applicable, in all cases not ^hereby expressly provided for, and shall be observed, applied, allowed, enforced, and put in execution for and in the raising, levying, collecting, and securing of the said duties hereby granted, and otherwise in relation thereto, so far as the same shall not be superseded by and shall be consist- ent with the express provisions of this act, as fully and effectually to all APPENDIX. 699 intents and purposes as *if the same had been herein repeated and specially enacted, mutatis mutandis, with reference to the ^ -' said duties by this act granted. III. The duties by this act granted in respect of bills of exchange drawn out of the United Kingdom shall attach and be payable upon all such bills as shall be paid, indorsed, transferred, oar otherwise negotiated within the , United Kingdom wheresoever the same may be payable, and the said duties shall be denoted by adhesive stamps, to be provided by the commis- sioners of inland revenue for that purpose, and to be aflEtxed to such bills- as hereinafter directed. IV. Every bill of exchange which shall purport to be drawn at any place out of the United Kingdom shall for all the purposes of this act be deemed to be a foreign bill of exchange drawn out of the United King- dom, and shall be chargeable with stamp duty accordingly, notwith- standing that in fact the same may have been drawn within the United Kingdom. V. The holder of any bill of exchange drawn out of the United King- dom, and not having a proper adhesive stamp affixed thereon as herein directed, shall, before he shall present the same for payment, or indorse, transfer, or in any manner negotiate such bill, affix thereon a proper ad- hesive stamp for denoting the duty by this act charged on such bill ; and the person who shall indorse, transfer, or negotiate such bill shall, be- fore he shall deliver the same out of his hands, custody, or power, cancel the stamp so affixed by writing thereon his name or the name of his firm and the date of the day and year on which he shall so write the same, to the end that such stamp may not be again used for any other purpose ; and if any person shall present for payment, or shall pay or jndorse, transfer or negotiate any such bill as aforesaid whereon there shall not be such adhe- sive stamp as aforesaid duly affixed, or if any person who ought as directed by this act to cancel such stamp in manner aforesaid shall refuse or neglect BO to do, such person so offending in any such case shall forfeit the sum of fifty pounds ; and no person who shall take or receive from any other per- son any such bill as aforesaid, either in payment or as a security, or by purchase or otherwise, shall be entitled to recover thereon, or to make the same available for any purpose whatever, unless at the time when he shall so take or receive such bill there shall be such stamp as aforesaid affixed ■ thereon and cancelled in the manner hereby directed. VI. If any person shall within the United Kingdom draw and issue any bill of exchange payable out of the United Kingdom purporting to be drawn 700 APPENDIX. in a set, and shall not draw and issue on paper duly stamped as required by law the whole number of bills which such bill purports the set to con- sist of, or if any person shall within the United Kingdom transfer or nego- tiate any such bill of exchange as aforesaid purporting to be drawn in a r*f;n«i ^^^' ^°^ ®^^^^ *''°*' ^^ ^^^ ^^^^ *™^ transfer or deliver on paper '- -' duly stamped as aforesaid the whole number of bills which such bill purports the set to consist of, every such person so offending in any of such cases shall forfeit the sum of one hundred pounds ; and if any person , shall take or receive in the United Kingdom any such bill as aforesaid, . either in payment or as a security or by purchase or otherwise, without having transferred or delivered to him duly stamped as aforesaid the whole number of bills which such bill purports the set to consist of, he shall not be entitled to recover on any such bill, or to make the same available for any purpose whatever. VII. And whereas, under and by virtue of certain acts relating to stamp duties, certain drafts or orders for the payment of any sum of money to the bearer on demand, drawn upon any banker or person acting as a banker residing or transacting the business of a banker, within fifteen miles of the place where such drafts or orders are issued, are exempted from all stamp duty, and it is expedient to prevent the negotiating or circulating of such drafts or orders unstamped at anyplace beyond the distance of fifteen miles from the place where the same are made payable : Be it enacted, that no such draft or order as aforesaid shall, unless the same be duly stamped as a draft or order, be remitted or sent to any place beyond the distance of fifteen miles in a direct line from the bank or place at which the same' is made payable or be received in payment, or as a security, or be otherwise negotiated or circulated at any place beyond the said distance; and if any person shall remit or send any draft or order not duly stamped as aforesaid to any place beyond the distance aforesaid, or shall receive the same in payment, or as a security, or in any manner negotiate or circulate the same at any such last-mentioned place, he shall forfeit the sum of fifty ' pounds. VIII. Provided always, That it shall be lawful for any person who shall receive any such draft or order as aforesaid at any place within the said distance of fifteen miles from the bank or place at which the same is made payable, which draft or order shall have been lawfully issued unstamped, to affix thereto a proper adhesive stamp, and to cancel such stamp by writing thereon his name or the initial letters of his name, and thereupon such draft or order may lawfully be received and negotiated at any place beyond the distance aforesaid, anything herein contained notwithstanding. APPENDIX. 701 IX. And whereas an act was passed in the seventeenth year of the reign of King George the Third, chapter thirty, for restraining the negotiation of promissory notes and inland hills of exchange under a limited sum : Be it enacted, that the said act, and any act or acts continuing or perpetuating the same, shall, so far as they respectively extend or may be deemed or construed to extend to any draft on a banker for.payment of money held for the use of the drawer, be and the same are hereby repealed. X. The adhesive stamps provided by the commissioners of in- p^rniT-] land, revenue for denoting the duty of one penny payable on '- -' receipts and on drafts or orders for the payment of money to the bearer, or to order on demand respectively, may lawfully be used for the purpose of denoting the like amount of duty either on a receipt or on such draft or order as aforesaid, without regard to the special appropriation thereof for the other of such instruments by having its name on the face thereof, anything in any act or acts contained to the contrary notwithstanding. XI. And whereas an act was passed in the seventh and eighth years of her Majesty's reign, chapter thirty-two, to regulate the issue of bank notes j and an act was passed in the eighth and ninth years of her Majesty's reign, chapter thirty-eight, to regulate the issue of bank notes in Scotland; and another act was passed in the last-mentioned years, chapter thirty-seven, to regulate the issue of bank notes in Ireland ; and in order to prevent evasions of the regulations and provisions of the said respective acts it is expedient to define what shall be deemed to be bank notes within the meaning thereof respectively : Be it enacted, that all bills, drafts or notes (other than notes of the Bank of England) which shall be issued by any banker or the agent of any banker for the payment of money to the bearer on demand, and all bills, drafts or notes so issued, which shall entitle' or be intended to entitle the bearer or holder thereof, without indorsement, or without any further or other indorsenient than may be thereon at the time of the issuing thereof, to the payment of any sum of money on demand, whether the same shall be so expressed or not, in whatever form and by whomsoever such bills, drafts or notes, shall be drawn or made, shall be deemed to be bank notes of the banker by whom or by whose agent the same shall be issued within the meaning of the said three several acts last meiitioned, and within all the clauses, provisions and regulations thereof respectively. XII. All bills, drafts and notes, which by or under this act, or the said three several acts last mentioned, or any of them respectively, are declared or deemed to be bank notes, shall be subject and liable to the stamp duties, and composition for stamp duties, imposed by or payable under any act or 702 APPENDIX. acts in force upon or in' respect of promissory notes for the payment of money to the bearer on demand ; and all clauses, provisions, regulations, penalties and forfeitures; contained in any act or acts relating to the issuing of such promissory notes, or for securing the said stamp duties and com- position respectively, or for preventing or punishing frauds or evasions in relation thereto, shall respectively be deemed to apply to all such bills, drafts and notes, as aforesaid, and to the stamp duties and composition payable upon or in respect thereof, anything in this act, or any other act or acts, to the contrary notwithstanding. [*508] XIII. And ■whereas under and by virtue of certain acts relating to stamp duties, letters by the general post acknowledging the *safe arrival of any bills of exchange, promissory notes, or other securities for money are exempted from the stamp duty granted and imposed on receipts or discharges given for or upon the payment of money: Be it enacted, that the -said exemption shall be and the same is hereby repealed. The Schedule to which this Act refers. Inland Bill of Exchange, Draft or Order, for the payment to the bearer, or to order, at any time otherwise than on demand, of any sum of money Not exceeding .... Exceeding £5 and not exceeding « 10 « « 25 ([ 11 50 tt 11 75 tt tt 100 tt ti 200 tt It 300 INITIALS, party to bill may be described by, in affidavit to hold to bail, 396. in the pleadings, 408. INLAND BILL, what it is, 379. INQUIRY. . not necessary to produce bill on writ of, 423. INSANITY. See Lunatic. 740 INDEX. INSERTION, of words creating negotiability^ 143. INSOLVENT DEBTORS, discharge under recent Bankruptcy Act, 451. acts recently in force, 452. general object of, 452. effect of, on liability of insolvent to holders of negotiable instrument, 452. of discharge of one of two makers of a note, 453. description of bill in schedule, 453. notice to creditor, 454. efiect of discharge on third persons, 454. bill or note given for debt for which insolvent has been discharged, 138, 454. bill given to prevent opposition, 455. effect of vesting order, 455. INSPECTION OP A BILL, by defendant, 326, 398. INSTALMENTS, bill or note payable by, 201, 406. stamp on, 99. action of debt on, 406. days of grace on, 201, 406. INTEREST, its nature, 295. when recoverable, 296. how much, 296, 401. where made payable by the instrument, and where not, 296. on bill or note payable on demand, 296. from what period it runs, 296. as against an indorser, 297. how bankers should charge it, 298. to what period computed, 297. when money paid into Court, 297. when engagement to give a bill will create a liability to, 298. in trover, 297. after tender, 298. proceeding for, after payment of principal, 298. when not recoverable, 298. rate of, 299. on foreign note, 386. arrest for, when, 394. on judgments after error brought, 412. proof for, in bankruptcy, 442. indebitatus count, 299. usurious. See Usury. INTOXICATION. See Drunkenness. lOU, what it is, 11, 28. need not be stamped, 28. otherwise if it amount to an agreement, 29. need not be addressed to creditor, 29. bill in equity lies to discover consideration of, 29. when action on it will be restrained, 29. IRISH BILLS, 387. interest on, 305. IRREGULAR BILL OR NOTE, 87 to 93. may be evidence of agreement, 93. stamp on, 99 to 101. proof of, 432. INDEX. 741 JOINDER IN ACTIONS, by partners, 49. JOINT AND SEVERAL NOTE, what it is, 1. evidence that one maker is surety, 8, 237. JOINT STOCK COMPANIES, whether directors or members can bind company by bills, notice of dishonour to a member, 283. effect of negotiated deed, 70. JUDGMENT RECOVERED, its effect, 228. by default after illegal consideration, 140. K. KING, cannot be guilty of laches, 209, 293. KNOWLEDGE, means of, not equivalent to, 264, 285, 286, 315. LACHES. See Presentment; Notice of Dishonour, and Principal and Surety. LADING, BILL OF, in what sense assignable at common law, 2, note (e.) now assignable by statute, 3. LANGUAGE, in which a bill may be written, 73. LAPSE OP TIME, where a bar, independently of the Statute of Limitations, 348. See Statute of Limitations. LARCENY OF BILL OB NOTE, statutable felony, 172. bill, how described in indictment, 321, 322, note (».) LAW MERCHANT, need not be pleaded, 2, note (e.) LEGACY, when it will amount to payment, 218. when a bill or note may operate to bequeath, 4. LETTER, direction of, containing notice of dishonour, 270. LIEN, of bankers, 2, note (e), 159, 168. power of sale in cases of lien, 169. when determined by a bill, 373. when it revives, 373. not destroyed by mutual credit, 357. LIMITATIONS, STATUTE OF, policy of the law, 327. when introduced, 328. the present statute, 328. division of the subject, 328. its general effect, 329. does not destroy the debt, 329. foreign Statute of Limitations, 330. what proceedings it limits, 330. 742 INDEX. LIMITATIONS, STATUTE OF— continued. as to the exception of merchants' accounts, 330. effect of statute on subsequent indorsee, 330. when it begins to run, 331. on a bill payable after date, 331. payable on a contingency, 331. payable by instalments, 331. against an administrator, 331. on a bill at or after sight, 331. on a bank note, 332, note (d). on a bill on demand, 332. after demand, 332. in case of fraud, 332. in case of accommodation bill, 333. where there has been both non-acceptance and non-payment, 333. up to what period of the suit, time of limitation computed, 333. death of parties after action, 333. how avoided by issuing a writ, 334. the saving clause, 335. infants, married women, lunatics, prisoners, and parties abVoad, 335, 336. supervening disabilities, 336. aclinowledgments and payments, 336 to 341. of what sort, 33T. when to be made, 341. by whom, 342. before action brought, 341. Lord Tenterden's Act, 337. evidence of date of acknowledgment, 338. construction of acknowledgment, 339. mutual running account, 339. devise, 339. acknowledgment by executors, 339. notice in newspapers, 340. part payment, 340. appropriation of payments, 340. payment by bill, 340. payment by goods, 340. stamp on acknowledgment, 341. statement of account, 341. payment of interest, 341. payment of money into Court, 342. payment by whom, 342. by joint contractors, 342. in bankruptcy and insolvency, 344. to whom, 345. evidence of, 345. signature of the party chargeable, 345. effect of verbal admission, 345. statute retrospective, 346. entries on the bill, 346. plea and replication of the statute, 34T. presumption of payment, 348. lapse of time, independent of statute, when a bar, 343. LOAN SOCIETIES' NOTES, no action on, 72, stamp on, 108. LORDS' ACT. See Insolvent Debtors' Act. LOSS OF BILLS AND NOTES, see App., 17 & 18 Vict. c. 124, s. 87., title of the finder, 324, 360. title of the finder's assignee, 360. proper course for the loser, 360. INDEX. 743 LOSS OF BILLS AND JHOTES— continued. cannot bring an action against the postmaster-general, 360. public notice of loss, 361. ^ presentment and notice of dishonour, 362. whether an action at law lies on a destroyed bill, 362. will not lie at common law on a lost bill, 363. at least not unless not negotiable, or transferable by indorsement only, 364. bill in hands of adverse party, 362. loss after action brought, 364. loss of half notes, 364. trover for lost bills, 366. action for money had and received, 365. remedy in equity, 365. lost bill when a payment, 372. when payment of a lost bill protected, 213. a court of law has no jurisdiction under the 9 & 10 Will. 3, c. It, o. 3 . , 365 366. indemnity to be given by the loser, 366. proceedings under 17 & 18 Vict., 366. proof in bankruptcy of a lost bill, 433. on whom the loss of a bill or note sent by post will fall, 367. whether an action will lie on the consideration of a lost or destroyed bill, 363. pleading, 364. presentment and notice of dishonour, 362. LUNATIC, bill or note by, 60. pleading, 61. M. MAKER, of a promissory note, who he is, 5. presentment to for payment, not in general necessary, 203. where bill payatile at a particular place, 207, 208. MARKSMAN, signature or indorsement by, 144, note (I). evidence of mark, 423. MARRIAGE, contract in restraint of, void, 132. contract of marriage brocage void, 132. transfer of bill on, 168, MARRIED WOMAN, her contracts are void, 62. except after a divorce, cl vinculo, 62. sole trader by custom of London, 62. estoppel on, 62. not liable for fraud being parcel of a contract, 62. if she have a separate estate and make ^ bill or note, liable in equity, 62. after her husband's death, a promise to pay valid at law, 62. where her husband is transported, 63. or alien abroad, 63. ' or presumed to be dead, 63. where a bill is given to a single woman and she marries, 63, 446. bill or note given after marriage, 63. reduction into possession of her chose in action, 64. where a single woman, liable on a bill, marries, 65. indorsement by a married woman, 62. note by husband to his wife, 65. payment to, 65. acknowledgment by to save the statute, 343, 344, note (i). T44 INDEX. MEMORANDUM, effect of on bill or note, 94, 95. duty of bankers to make on bills, &c., when paid, 166, 223. MERGER, ' in an instrument of a higher nature, 228. MESSAGE, sent, not presumed to be delivered, 125, note (g). expenses of, 272. MISCARRIAGE, of the post-office, 270. MISDEMEANOR, compounding, when an illegal consideration, 132. when legal, 132. embezzlement of bills, &c., 39, 172. MISSPELLING, will not avoid indorsement, 145. MISTAKE, in charging too high interest, not usury, 304. alteration of bill to correct, when allowed, 312. amendment of on trial, 427. MONEY, property accompanies possession, 157, 158. MONEY COUNTS, where applicable, 424. MONEY HAD AND RECEIVED, bill or note 'evidence of, 425. MONEY LENT, bill or note evidence of, 425. money deposited with a banker is, 425. MONTH, how calculated, 197. MORAL OBLIGATION, in some cases a good consideration for a bill or note, 123. MORALS, contracts contrary to, 131, 383, 386. MORTGAGE, note amounting to equitable, 95. MUTUAL CREDIT. See Set-off. what it is, 356. need not be money, 356. the debts need not be due, 356. need not be intended, 357. does not destroy a lien, 357. MUTUAL PROMISES, when satisfaction, 226, note (e). N. NAME, proof of, 423. suing in another's name, 392. no one liable on a bill unless his name be there, 37. NEED, presentment to referee in case of need, 256. NEGLIGENCE, of transferee formerly affected bis title, 15S, 361, note (e). now does not, 158, 361, note (c). unless it amounts to fraud, 158. , INDEX. 745 NEW AND OLD STYLE, 199. NEW SECURITY, 136. NON-ACCEPTANCE, notice of, 263, note (a). NON COMPOTES, 60. NON-PAYMENT, noticd of, 263, note (a). See Notice of Dishonour. NOTARY PUBLIC, how appointed, 250. his ofSce, 250. what he may charge, 252. table of fees, 457. See Appendix. NOTE, PROMISSORY. See Promistory Note NOTICE, proof in bankruptcy of note payable after, 433. of dissolution of partnership, 50. NOTICE OP NON-ACCEPTANCE, 263, note [a). See Notice of Dishonour. NOTICE OF NON-PAYMENT, 263, 264. See Notice of Dishonour. NOTICE OP PROTEST, when it must be given, 252. NOTICE OF DISHONOUR, mode of giving it, 2T0 to 272. what form of, requisite; 264 to 269. instances when held insufScient, 266 to 268, in notes. the like where sufficient, 267, 268, in riotes. statement of party on whose behalf it is given, 269. notice of protest need not accompany it, 270. verbal message, 264, 268, note. notice by post, 270. how it should be directed, 270. where It should be posted, 270. evidence of posting, 271. consequence of miscarriage, 271. ' special messenger, 271. when expense of special messenger may be charged, 272. by what conveyance notice of dishonour should be sent abroad, 272. at what place, 272. when to be given, 273. where the parties live in different places, 273. in the same place, 275. where a party, receiving notice, must transmit it, 275. whether it may be given on the day of dishonour, 275. notice through branch banks, 276 in case bill is deposited with banker or agent, 276. where Sundays or holidays intervene, 277. of whom proof lies, 277. what is evidence, 277, 293. by whom notice may be given, 278. cannot be given by a stranger to the bill, 278. where the notice circulates back through several parties, 278. notice of dishonour of a bill, payable at a particular place, need not be given to acceptor, 282. by an agent, 279. to whom, 280. , to an agent or attorney, 281. need not be given to acceptor, 282. to parties jointly liable, 283. to a party not indorsing, 283. ' 746 INDEX. NOTICE OF mSEO^OVBr-coniinued. to a guarantor, 284. to an indorser giving a bond, 284. wliere several are jointly liable, 283. consequences of neglect to give notice, 285. what excuses notice, 285. agreement of tlie parties, 285. where drawer had no effects in drawee's hands, 286. countermand of payment, 286. where reasonable expectation that the bill would be paid, 288. ignorance of residence, 289. in case of death, 290. of illness, 290. of accident, 290. of bills drawn by several on one of themselves, 291. bill or note not negotiable, 291. death, bankruptcy or insolvency of drawee, 291. where bill is on an insufiicient stamp, 291. notice to produce notice not necessary, 294. consequence of neglect waived by promise, payment or acknowledgment, 291, 292. laches not imputable to the Crown, 293. * where the bill is taken under an extent, 293. pleading, where notice is excused or waived, 293. evidence of notice, 293. > of a lost bill, 362. notice to produce, 294. NOTICE OF FILING INSOLVENT'S PETITION, 455. NOTICE OF ILLEGALITY OP CONSIDERATION ORPRAVD, 117, 118, 139. burthen of proof, 117, 118. NOTICE TO AN AGENT, 120. NOTICE TO PROVE CONSIDERATION, not necessary, 115. NOTICE TO PRODUCE, when defendant must give notice to produce bill, 423. notice of dishonour not necessary, 294. NOTING, what, 251. is an incipient protest, 251. use of noting, 252. expen^^B of, 252. OFFICIAL SITUATIONS, liability of persons filling, 71. bill or note given to them, 71. ofiScer of friendly society, 72. OLD AND NEW STYLE, 199. "OR ORDER," of the words, 1, 80, 144. subsequent insertion of these words, 143, 314. OVERDUE BILL OR NOTE, transfer of, 161. burthen of proof, 164. when a bill on demand is overdue, 164, 201. when a check is, 163. transfer of a check, when, 163. equitable, relief, 164. INDEX. 747 OVERSEER, note given by, 71. note given to, 133. PAR DELICTUM, what is, 129. PARISH OFFICER. See Overseer. PAROL EVIDENCE, to stiow no contract, 96. that bill delivered as an escrow, 96. PARTS OP BILLS. See Selt of Bith. PART OP CONSIDERATION ILLEGAL, 139. PARTIAL ACCEPTANCE, 187. PARTICULARS OF DEMAND, what it should include, 399. PARTNER, what constitutes a partnership, 40. actual and ostensible partners, 41. agreement not to draw bills, 41. partners both entitled and liable on a bill, 41. where one partner can bind the other by bill, 43. not bound by promissory note of his copartner, 44. nor if style of firm varied, 44. farming, mining and joint stock partnerships, 44. partnerships not in trade, 45. partner exceeding his authority, 45. creditor carrying on partnership under deed of arrangement, 45. effect of partnership articles against drawing bills, 47. where there is notice, 46. pleading and evidence, 47. ..partner in two firms, 47. incoming partner, 48. when the holder of a bill discharges the firm by taking fresh security, 48. ratification, 48. dormant partner, 48. his rights, 49. where the partnership is to commence by relation from a time past, 49. when a dormant partner may join as plaintiff, 49. or be joined as defendant, 49. nominal partner, 49. dissolution, 50. notice of it, 50. notice of retirement of secret partner, 51. effect of dissolution, 51. dissolution by death, 52. transfer, how to be made after dissolution, 52. when authority to indorse after dissolution may be inferred, 52. dissolution by bankruptcy, 52. occasional partnership, 53. survivorship, 52 note (c). acknowledgment by taking a bill out of the statute, 343. receiving profits without risk, usury, 305. PAWNING BILLS. See Pledging. PAYEE, ' who he is, 1. description of, 77. indorsement of, 77. indorsement by another man of the same name, 77. 748 INDEX. FAYEE—coniimted. where there is no payee, 18. a fictitious payee, 78. his title when he is a third person like that of first indorsee, 124, note (y). when principal and when surety, 236. PAYMENT, presentment for. See Presentment for Payment. transfer after, 166. to whom payment should be made, 212. to wrongful holder of bill payable to bearer, 213. , when not payable to bearer, 214. of a lost or stolen bill, 213, 372. See Loss of Sills and Notes. of a forged bill, 223, 323. See Forgery. of crossed checks, 21. when payment of a forged bill may be recovered back, 223, 324. when payment should be made, 216. at what time of day, 216. before bill is due, 217. when a legacy will be a satisfaction, 218. payment after action- brought, 217. ' by banker's notes and checks, 217. appropriation of payments, 218. rateable appropriation, 220. part payment, 221. by acceptor, 214. by drawer or indorser, 165, 166, 214. by a stranger, 216. by drawer where there is a third person payee, 166.' when a bill taken of a third person is payment, 370, when a bill is payment in bankruptcy, 450. presumptive evidence-of payment, 221, 348. delivering up the bill, 222. giving a receipt, 222. effect of a receipt, 223. tender, 216, 223. retractation of payment, 223. how far a bill or note is considered payment, 368. how far extinction of the debt as to one party on a bill will be satisfaction to another, 227 to 229, 237, 238. to an infant, 60. to a married woman, 65. by negotiable instruments, 372. evidence of payment, 222. PAYMENT, SUPRA PROTEST, what and how made, 260. right of party paying supra protest, 260. notice of dishonour by, 261. cannot revive liability, 261. paying for honour without protest, 261. of accommodation bills, 261. PAYMENT OP MONEY INTO COURT, formerly admitted sufiSoiency of stamp, 113. effect under the Statute of Limitations, 342 . PENCIL, bills and notes may be written in, 73. PETITIONING CREDITOR'S DEBT. See Bankruptcy. PLACE WHERE BILL OR NOTE IS MADE, superscription of, 74. PLACE WHERE BILL OR NOTE IS PAYABLE, appointed by the drawer, 84, 205. by the acceptor, 84, 205, 311. INDEX. 749 PLACE WHERE BILL OR NOTE IS PAYABLE— coniinued. by maker of note, 84, 205. Bank of England notes, 85. other bank notes, 85. PLEADING, of law merchant unnecessary, 2, note (e). imbecility, 61. drunkenness, 61. written agreement, 97. in action on bill payable at a particular place, 207. where note so payable, 208. old forms of actions, 405. debt, 406. assumpsit, 407. declaration, 407. statement of parties, 407. may be by initials, 408. description of instrument, 408. statement of acceptance, 409. of presentment and notice of dishonour, 293, 409. statement of excuse for not presenting, 409. statement of maturity of instrument, 410. of notice of indorsement, 148, 410. of protest, 410. allegation of promise to pay, 411. on bill drawn in sets, 412. breach and damages, 412. pleas, 412. effect of new rules, 412. non assumpsit, 412. nil debet, 413. general issue by statute, 413. traverse of acceptance and indorsement, 413. effect of traverse of indorsement, 414. no consideration, 414. denial that plaintiff is holder, 415. defect of stamp need not in general be pleaded, where the bill must be pro- duced, 113, 315, 316. fraud, 415. payment and satisfaction, 415, 416. effect of pleading over, 415. statutable jurisdiction over pleas framed to embarrass, 418. duplicity and sham pleas, 416 to 418. estoppel, 419. foreign law, 390. alteration, 315, 316. old replication, de inJariS,, 418. replication to plea denying consideration, 418. distributive replication, 419. special demurrers abolished, 417. PLEDGING BILLS, in the case of a bill confers no power of sale, 169. rights of party to whom bill pledged, 2, 159. by agent, 34. by agent, a misdemeanor, 39, 172. jn a mass by bill-broker, 35. POLICY, public: See Public Policy. POSTAGE, 402. POST-DATING. See Date. POWER OF ATTORNEY. See Atlomey, Power of. 750 INDEX. PRE-EXISTING DEBT, when a consideration, 39, 121. PRESENTMENT FOR ACCEPTANCE, what time may be given for deliberation, iTT. whether the bill may be left, 111. advisable in all cases, 174. when necessary, 174. when it should be made, 174. at what hour, 176. when excused, 176. to whom, 177. consequence of neglect to present, 177. course when drawee cannot be found, or is dead, 177. whether the owner is bound to acquiesce in acceptance by agent, 35. pleading, 177. PRESENTMENT FOR PAYMENT, how made, 195. in case of bankruptcy or insolvency, 196. whether necessary when a bank stops payment, 197. not necessary in order to charge a guarantor, whost name is not on the bill, 197. where drawee is dead, 197. or cannot be found, 197. when holder is dead, 197. when to be made, 197. at what hour, 204. ^ computation of time, 199 to 201. where the instrument is payable on demand, 201, 202. where payable at sight, 201. after sight, 201. of a check, 203. usance, 198. general rule, 202. of bank notes, 203, where no time is s^Q'fiB^, 204. where bill lost o^SesKoyed, 362. where, when a Iralis niunJ^Skyable at a particular place, 205. pleading, wheye bHH/tt&a/gwMfy 408, 409. presentment, whehrTtafejjaHWjKfeibl^ 208. of bill or note when place ot ^(^ent is mentioned in a memorandum, 208. not necessary in order to ohOTge acceptor or maker, 209. effect of not presenting on/uie liability of other parties, 209. when neglect ta present i^;ccased or waived, 209. presentment for payment to the drawee, necessary after protest for non-accept- ance, 256. when bill or note due on Sunday, &c., 200, 277. pleading, 211. evidence, 211. PRESUMPTION, of consideration, 115. • that bill indorsed before due, 164. no presumption of illegality or fraud, 117, 118. nor notice thereof, 119, 120. of payment, 221. See Burthen of Proof . PRINCIPAL AND AGENT. See Agent. unnamed principal not liable on a bill, 37 PRINCIPAL AND SURETY. See Indulgence. when evidence of this relation admissible, 8, 238. what parties principals, and what sureties, 136 to 238. valid agreement to give time to the maker or acceptor, discharges other par- ties, 232, 237, 239, 240. agreement to give time to prior indorser, discharges subsequent Indorsers, 236 INDEX. 751 PEINCIPAL AND SVRETY— continued. the agreement to give time must, in order to discharge other parties, be a valid one, 241. taking fresh security, 241, 243. obtaining a judgment, 242. tailing a new bill, 243. a warrant of attorney, 242, 244. accepting pan payment, 242. proving under fiat, 242, and see Bankruptcy. how discharge of surety may be prevented, 244. ' how waived, 245. compounding, 243. waiving execution against the person, 241. against the goods, 241, note (o). agreement that the surety shall not be discharged, 244. consequence of indulgence, how waived by consent, 245. contribution between co-sureties, 247. action between co-sureties, 247. proof under a fiat by a surety, 433. PROCURATION. See Agent. the words per procuration, notice of limited authority, 33. PRODUCTION OP BILL, unnecessary at trial unless issue require it, 423. and on writ of inquiry, 423. PROMISE TO PAY, effect of, 254. PROMISES, MUTUAL, when satisfaction, 226, note (e). PROMISSORY NOTE, what it is, 5, 203. what ait common law, and what by statute, 5. foreign promissory notes, 6, 157, 348, note (/). form of, 6. note by a man to himself, 6, 87. how declared on after indorsement, 6. note by a man to himself and another, 6. English notes assignable abroad, 6. joint and several, 7. contribution between joint makers, 8. p^able by instalments, 7. by principal and surety, 8, 237 to 239. See Principal and Surety. contracting words in, 10. invalidated by agreement to give further security, 12. not invalidated by reciting collateral security, 12. ambiguous instruments, 87. must be for a certain sum of money only, 89. and in specie, 89. must not be conditional, 90. nor be payable out of a particular fund, 93. time of payment may be uncertain if inevitable, 92. when an irregular note may be evidence of an agreement, 93. effect of memorandum on the note, 94. of distinct agreement relating to the note, 95. when evidence under the common counts, 423. given by an infant for necessaries, 57, 59. payable after sight, 76, 198, 209. payable at a particular place, 208. promise in, 10. no payment of, mpra proteat, 262. 752 INDEX. PROOF. See Evidence. under fiat, or petition in bankruptcy. See Bankruptey. of consideration, 115. PROSECUTION, bills or notes given on the abandonment of, 132, 133. PROTEST, necessary on foreign bills, 249, 38S. why, 249. check cannot be protested, 25. by whom to be made, 249. office of a notary, 250. when protest should be made, 250, 262. where to be made, 252. form of a protest, 251. for better security, 251, 258. * / notice of protest when necessary, 252. copy of, 252. when protect is excused, 252. of inland bills, 253. of notes, 253. of lost bills, 254. pleading, 254. evidence, 254. acceptance supra protest, 255. payment supra protest, 260. stamp on, 251. PUBLIC INTERESTS, contracts against, 3S6. PUBLIC POLICY, bill giv«n for consideration contrary to, 132. RAILWAY COMPANY cannot accept bills, 66, RATEABLE APPROPRIATION, 220. RATIFICATION, of agents' acts, 32. of partners' acts, 48. by an infant, 58. RATIHABITION, its effect, 32, note {d). RECEIPT, may be demanded, 222. effect of, 223. when on a bill, no stamp necessary, 223. evidence admissible to explain, 223. unstamped may be used to refresh the memory, 223. RED INK, alteration In, 312, note (A). RE-EXCHANGE, what and when recoverable, 401, 402, when proveable, 442. REGISTRATION, of company under 19 & 20 Vict. c. 47 . . 70. complete, of company under 7 & 8 Vict. c. 110 . . 70. RE-ISSUABLB NOTES, what, 109. exempt from stamp, 109. re-issuing bill after premature payment, 217 INDEX. 753 RELEASE, what it is, 231. premature, 231. at maturity, 231. by a party not the holder, 231. to the acceptor, 232, 241. to one of several acceptors, 232. how far a covenant not to sue will operate as a release, 232. its effect on the liability of other parties, 232. whether its effect maybe restrained by the terms of the instrnment, 232. its effect on the liability of a surety, 23T to 239. by appointing debtor executor, 54, 233. transfer after, 167. RENEWAL OF A BILL, effect of, 229. meaning of agreement to renew, 97. when it discharges other parties, 241. when it is a satisfaction of the former bill, 229, 313. of bill given on illegal consideration, 140. of bill given without consideration, 140. of altered bill, 315. RENT, bill or note does not suspend distress for, 370. REPUTED OWNERSHIP, applies to bills, 447, 448. See Bmikmptcy. bills in the hands of agent or banker when they pass by, 448, 449. REQUEST TO PAT, what sufficient on the face of the bill, 77. how made, 195. RESIDUE, transfer for, 167. RESTRICTIVE INDORSEMENT. See Indorsement. RETIRE, meaning of the word, 215. RETOUR SANS PROTBT, 253. RETRACTATION OP PAYMENT, 223. REVENUE LAWS, 387. RIGHT TO BEGIN, 420. S. SALE OF BILL. what is consid^ed as such, 1 54. power of, wl^e there is a lien, 168, 169. SANS FRAIS, effect of those words, 253, SANS RECOURS, effect of those words, 38,. 147. SATISFACTION, not necessary to rescission of contract befbre breach, 226. its requisites, 226. whfi.t amounts to,. 225 to 227. from one party releases the others, 22T. payment of a smaller sum by a third party,. 22& engagement by a, third party, 227.. relinquishing a suit, 227. when a bill operates aB„ 22,7- 48 754 INDEX. SOOTLAUD, bills and notes of, 390 ; and see the 9 Greo. 4, c. 65. {Appendix.) law of, 390, note («). discharge by Scotch bankruptcy, 385. SEA, bill made at, 387. beyond seas, what is, 335. SBOUEITT, taking security from one partner, 48. , when a bill is a security for money, 82. collateral, 243, 369, 422. new, 136. SETS OF BILLS, what they are, 375, 380. statement of, in pleading, 412. who entitled to bill, when parts are in different hands; 376. number of parts, 376. effect of omitting to refer to other parts, 376. liability of drawee or indorser, 377, copies of bills, 377. substitutions, 378. SET-OFF AND MUTUAL CREDIT, nature of set-off, 349. unknown to common law, 350. recognized by equity, 350. introduced by statute, 360. general statutes, 351. statutes permissiye not imperatire, 353. what debts may be set off, 351. pleading, 354. particulars of set-off, 354. set-off and mutual credit in bankruptcy, 354. when mutual credit must haye existed, 354. fraudulent set-off, 355. attempt to depriTe of, 356. mutual credit, what, 356. set-off in equity, 358. fraudulent, 355. where an indemnity will operate as a set-off, 359. how to be taken advantage of, 357. against holder of OTerdue bill. See Transfer. SHOP NOTES, 10. SIGHT, bills drawn at or after, when to be presented, 174. what is considered to be sight, 76, ^09. whether days of grace are allowed on bills at, 201. note payable at or after, 76, 104, 105, 198, 201, 209. stamp on note payable after, 104, 105. SIGNATURE, of drawer, 83. where to be written, 83. by a mark, 74, 83. how pleaded, 83, 407. when to be afSzed, 84. by an agent, 32 to 35, 37. not formerly essential to an acceptance, 181, 183. but is so now, 183. forgery of, 318 to 320. proof of, 422. SOMNAMBULISM, 61. INDEX. T55 SPECIAL INDORSEMENT, 144. SPECIE, bill or note must be for payment in, 89. SPELLING, wrong, will not prejudice indorsement, 145. SPIRITUOUS LIQUORS, bill or note for, 138. appropriation (rf payment to, 139. STAMP, when first imposed, 98. adhesive stamps, 106. what regulations of former acts still in force, lOT. restamping, 108. exemptions from stamp duty, 101, 103, 106, 108. on foreign bills and notes, 109, 387. on Irish and colonial bills, 109, 387. on re-lssuable notes, 109. . when notes may be re-issued, 109. on instruments in the nature of bills, 112. effect of alterations in the law, 108. reservation of interest, 112. on post-dated bill, 112. effect of want of a stamp, 110. effect of post-stamping contrary to law, 111. on instruments which are in law but agreements, 112. when objection to the stamps should be taken, 113. pleading, 113, 316, 318. penalty on unstamped instruments, 109. formerly sufficiency of stamp admitted by payment of money into court, 113. effect of alteration under the Stamp Act, 312, 315. Stamp Act. See Appendix. amount of stamp, 99 to 105. on bill or note payable after sight, 99. , fresh dies. 111. See the former and existing Statutes in the Appendix, STATUTE, general issue by, 413. of limitations. See Limitations. STATUTES. See Appendix. STAYING PROCEEDINGS, in what cases, and on what terms, proceedings will be stdyed, S99. STEALING. See Larceny and Loss. STERLING, meaning of, 80. STOCK-JOBBING, statutes prohibiting, repealed, 136. former statutes, 136. what it is, 136. betting upon stock, 136. when a bill was void for, 137. innocent indorsee, 135. STRANGER, payment by, 216. STRIKING OUT INDORSEMENTS, 149. STYLE, old and new, how computed, 199. SUBSCRIBING WITNESS. See Attesting Witness. 766 INDEX. SUIT. See AcUm. who may sue on a bill, 2, 391. SUM PAYABLE, subscription of, 75, 80. when error aided by the body of the instrument, 75. affidavit to hold to bail must state the sum, 394. SUNDAY. See SoUday. SUPERVENING DISABILITY, 333, 336. SUPRA PROTEST, acceptance, 255. ^ payment, 260. SURETY. See Principal and Swrety. proof by surety in bankruptcy, 433. rights of sureties, 246. SURVIVORSHIP, ' among- partners, 52 . SUSPENSION, of right to sue on bill, 229, 230. effect of renewal, 229. by debtor becoming administrator, 55, 230. not by covenant restraining right to sue for a limited time, 230. nor by collateral agreement upon good consideration, 230. T. TEARING IN PIECES, 324. TENDER, 399. of part, 223. plea of, after day of payment, 216, 399. interest ceases to run after, 298. when bills or notes a good tender, 10. TESTAMENTARY PAPER, when a bill or note might have been, 4. See Wills. TIME OP PAYMENT, when a particular time necessary, 76. may be uncertain if inevitable, 92. when not expressed, 204. See Presentment for Payment and Days of Grace. giving time. See' Principal and Surety. TIPPLING ACT. See Spirituous Liquors. TOKENS, 159. TRADING, what transactions in bills constitute, 447. TRANSFER. See Indorsement and Delivery. modes of, 143. after partnership dissolved, 51. what bills transferable, 142. liability of party transferring by delivery, 153. by sale, 154. under peculiar circumstances, 160. before bill filled up, 160. after due, 161. after refusal to accept where the transferee has notice of the dishonour, 160. where he has no notice, 161. set-off to overdue bill, 163. transfer of overdue check, 163. ' INDEX. 757 TRANSFER— emtimied. of check drawn on banker of the bearer, 164. after abandonment of right by transferee, 165. after payment by party ultimately liable, 165. after payment by other parties, 165. after premature payment, 166. after partial payment, 166. transfer to acceptor, 167. transfer for part of the sum due, 167. for residue, 167. after release, 167. after action brought, 167. in a foreign country, 168. after holder's death, 168. after bankruptcy, 168, 450. after marrfage, 1 68. by deposit with banker, 168. by will, 169. donatio mortis cattid, 169. how it resembles a legacy, 171 effect of transfer in removing technical difficulties, 173. in bankruptcy, 450, 451. ft'audulent, 451. See Bankruptcy. voluntary, 452. when restrained, 173. of a forged or altered bill. See Chapters on Alteration and Transfer. TROTBR, against tiransferee of agent, 34. lies for bills, 365, 393. when it changes the property in a bill, 395, to what period interest computed in action of, i297, 298. TRUSTEE. bill in the hands of, does not pass to assignee, 450. See Restrictive Indorsement and Agent. USAGE, general n^age part of the law merchant, 2, n. (e). USANCE, what it is, 76, 198. what between different countries, 198. USURY, at common law, 299. statutes, 300. now repealed, 309. effect of them, 300. their construction, 300. on bills under three months, 307. under twelve months, 308. there must be a loan, 301. usury on discounts, 301. usurious security for good debt, 302. where interest charged not for loan but labor, not usury, 302. intention material, 303. excessive interest charged by mistake, 304 hazard of the principal, 304. loan to partner, 305. advance of goods, 306. Irish interest, 305. 768 . IITDBX. V USURY — contirmed. coloniEil interest, 305. foreign interest, 306. , substituted security, 306, ' separate instruments, 307. innooerii indgrsees,'307. improp^ amount of commission, 303. when the contract is void, 300. when the penalty is incurred, 300. how interest should be charged by a banker on checks, 303. exemptions from the usury laws, 307, 308. total repeal of usury laws, 309. pleading, 309. UTTBRKG FORGED BILLS. See Forgery. V. VALUE, " bon^ fide holder for value" an ambiguous expression, 117, 118. , burthen of proof, 118. VALUE RECEIVED, these words unnecessary, 82, 406, note (i). VARIANCE, amendment of on tjial, 428. VARYING ACOBPTA,NCE, 187. VENUE, when it may be changed, 398. VOID BILLS, forgtery of, 318. gaming contracts, 134 VOLUNTARY TRANSFER, when void, 452. W. WAGER. void, 134, 135. WAIVER, \of indorsement, 165. " of acceptance, 190 to 192. of presentment, 210. of want of protest, 252. of absence of notice of dishonour, 285. of fieri facias, 229. when the taking of a bill effects a waiver of a lien, 373. WANT OF EFFECTS. See EffMs. WARRANT OF ATTORNEY. See Attorney, Warrant of. WARRANTY, transfer by delivery warrants genuineness of signature, 157. indorsement warrants genuineness of former indorsements, 214, note (i). indorsement formerly warranted a bill, apparently a foreign bill, to be really so, 380. WARRANTY, FRAUDULENT, defence to an action, 128., WIPE. See Married WomaHi INDEX. 759 WILL, when a bill, check, or note might be, before the late statute, 4. when an indorsement might operate as a testamentary instrument, 4. transfer of a bill by, 169. WITNESS. See Evidence